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THE    LAW 


OP 


REMEDIES    EOll    TORTS, 


INCLUDINO 


REPLEVIN,   REAL    ACTION,   PLEADING, 
EVIDENCE,   D.ViMAGES. 


BY 


FRANCIS   HILLIARD, 

I  'I 

AUTHOR  OF    "the   U.VWtOB"  TORTS,"    "  TH^  I^W   OF   MORTGAGES,"    ETC. 


SECOND     EDITION,    GREATLY     ENLARGED. 


BOSTON: 

LITTLE,   BROWN.   AND    COMPANY. 

1873. 


n  ^j-^  a 


V 


H  SS'^S'to 


Entered  according  to  Act  of  Congress,  in  the  year  1867,  by 

FRANCIS   HILLIARD, 

In  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 
Entered  according  to  Act  of  Congress,  in  the  year  1873,  by 

FRANCIS   HILLIARD, 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington. 


CAMBRIDGE: 
PRESS  OF  JOHN   WILSON   AND    SON. 


PREFACE   TO   THE   SECOND   EDITION 


To  this  edition  the  recent  cases  have  been  copiously 
added,  making  an  increase  of  about  two  hundred  pages. 
With  respect  to  the  titles  of  Pleading^  Evidence^  and  Dam- 
ages^ the  present  work,  except  so  far  as  strictly  limited  to 
Torts,  must  take  its  place  by  the  side  of  others  on  the  same 
subjects.  Upon  the  two  important  topics,  Replevin  and 
Real  Action,  it  is  believed  that  the  book  in  its  enlarged 
form  contains  a  much  more  complete  abstract  of  the  law 
and  collection  of  the  authorities  than  can  elsewhere  be 
found. 

1873.  F.  II. 


LiiHy.1 


PREFACE. 


The  following  work  is  specially  designed  to  be  a  sequel 
or  supplement  to  another  book  which  has  been  received 
with  some  favor  by  the  profession, — "The  Law  of  Torts 
or  Private  Wrongs."  This  explanation  is  necessary,  in 
order  to  save  the  present  treatise  from  the  charge  of  being 
more  desultory  and  disconnected  than  any  legal  text-book 
ought  to  be.  Had  my  original  plan  been  more  comprehen- 
sive, the  contents  of  the  following  pages  might  without 
marked  impropriety  have  been  scattered  among  the  succes- 
sive chapters  of  the  former  work.  Constituting,  therefore, 
as  they  now  do,  the  material  of  a  separate  book,  they  re- 
quire to  be  read  in  connection  with  the  former  one,  before 
the  question  of  their  pertinency,  utility,  and  methodical 
propriety  can  be  fairly  passed  upon.  A  few  remarks  will 
explain  the  plan  of  the  present  book. 

In  treating  of  remedies  for  torts,  of  course  it  is  not  pro- 
posed to  enter  into  a  consideration  of  those  matters  of 
mere  process  oy  practice,  which  are  for  the  most  part  com- 
mon to  all  suits  at  law,  whether  founded  upon  contracts 
or  upon  wrongs ;  and  which  are  generally  and  variously 
regulated  in  the  several  States  by  express  statute.  In  such 
a  plan  would  be  included  the  writ,  service,  entry,  trial,  ver- 
dict, judgment,  execution,  and  numerous  other  incidental 
points,  all  of  great  practical  importance,  but  having  no 
special  connection  with  the  main  subject  of  this  work,  and 


PREFACE. 


the  law  pertaining  to  which  depends  so  extensively  upon 
positive  legislation. 

Another  limitation  of  the  plan  of  the  present  work, 
depending  on  somewhat  different  considerations,  is,  that 
it  omits  those  remedies  which  are  directed  to  the  recovery 
of  compeiisatioii ;  and  is  confined  to  that  restricted  class, 
which  claims  specifically  the  property,  personal  or  real, 
alleged  to  be  wrongfully  taken  or  detained ;  including 
replevin,  and  real  action  or  ejectment;  —  the  action  of 
detimie,  though  it  belongs  to  the  same  class,  being  now 
substantially  obsolete.  With  reference  to  actions  for  dam- 
ages, the  remedy  has  to  some  extent  unavoidably  been 
treated,  in  the  work  to  which  the  present  is  a  supplement, 
in  connection  with  the  wrong  itself.  Thus  it  would  be 
impossible  to  treat  of  the  wrong  of  conversion,  without  at 
the  same  time  treating  of  the  remedy  of  trover.  And  so 
with  the  wrong  and  remedy,  both  entitled  trespass,  and  the 
wrong  of  negligence,  redressed  by  the  action  on  the  case. 
But  it  is  otherwise  with  the  specific  remedies,  which  we  are 
about  to  consider.  There  is  no  particular  wrong  for  which 
rejylevln  is  the  appropriated  remedy.  And,  in  reference  to 
the  unlawful  withholding  of  real  property,  the  wrong  of 
disseisin  and  the  remedy  of  ejectment  are  so  inseparably 
connected  together,  or  rather  the  remedy  so  far  regulates 
and  controls  the  wrong,  that  to  treat  of  the  subject  at  all 
was  found  inconvenient  in  the  former  work,  and  the  whole 
was  reserved  for  future  consideration. 

There  are,  however,  three  topics,  applicable  alike  to  all 
torts,  and  still  strictly  coming  under  the  head  of  remedies, 
which  will  be  found  fully  treated  in  the  present  work. 
These  are  j^leading,  evidence,  and  damages.  All  have  been 
heretofore  incidentally  noticed,  but  could  be  appropriately 
considered  at  length  only  in  this  connection.  The  last  of 
the  three,  —  damages,  —  instead  of  being  restricted  to 
actions  for  the  specfic  recovery  of  the  property  detained. 


VI  PREFACE. 

is,  on  the  contrary,  from  necessity,  applied  almost  wholly  to 
actions  for  the  recovery  of  damages. 

It  may  perhaps  be  suggested,  that  the  principles  of 
exclusion  or  limitation  above  stated,  namely,  to  omit  that 
which  applies  indiscriminately  to  tort  and  contract,  and 
that  which  is  copiously  and  variously  regulated  by  the 
statute  law,  would  shut  out  these  three  important  topics. 
I  would  say,  in  reply,  that  while,  in  some  instances,  the 
general  rules  of  pleading,  evidence,  and  damages  are  the 
same  with  reference  to  torts  and  contracts,  it  will  be  found 
that  the  illusb^ations,  upon  which  the  point  of  a  rule  often 
depends,  are  in  the  present  work  strictly  confined  to  the 
former.  And  with  reference  to  the  statutory  law,  though 
in  regard  to  mere  forms  it  has  largely  changed  the  rules 
of  pleading,  it  has  not  undertaken,  to  any  great  extent,  to 
modify  the  ^9ri?ic//9?es  which  govern  either  pleading,  evi- 
dence, or  damages;  and  therefore,  unlike  other  points  of 
remedy,  all  these  subjects  admit  a  mode  of  treatment  which 
is  of  general  and  not  mere  local  applicability. 

The/on?is  and  jwecedents  at  the  close  of  the  volume  are 
such  only  as  have  been  in  substance  tested  by  actual  deci- 
sions, each  of  which  is  referred  to  in  connection  with  the 
form  which  it  is  supposed  to  sanction.  In  actual  practice, 
commendable  caution  will  lead  to  an  inspection  of  the 
entire  pleadings,  as  set  out  in  the  Reports  cited. 

F.  H. 


CONTENTS. 


BOOK    I. 

REPLEVIN. 

CHAPTER  I. 

Pages 
General  Nature  and  Objects  of  the  Action  .        .     1-1(5 

1.  Definition  and  general  nature  of  the  action. 

2.  Delivery  of  the  goods  to  the  plaintiff. 

3.  Tortious    taking,    whether    necessary  —  cejnt   and    detinet;    practice    in    different 
States. 

11.  Lies,  in     general,   only   for   personal   property;  —  things   pertaining   to  the   realty; 
choses  in  action. 
14.  A  local  action. 

16.  In  what  courts. 

17.  Successive  replevins  of  the  same  property. 

CHAPTER  n. 

Replevin  in  Case  op  Distress,  Impounding,  &c.       .        .     17-21 

1.  Originally  limited  to  this  class  of  cases. 

2.  Trespass  ab  initio. 

8.  Practice  in  different  States  as  to  cattle,  impounding,  fences,  &c. 

CHAPTER  III. 

Distress  for  Rent 22-26 

1.  General  principles  —  practice  in  different  States. 

2.  Pleading,  evidence,  verdict,  judgment. 
17.  Miscellaneous  points. 

CHAPTER  IV. 

Property   and  Possession  necessari:    to  Maintain  Re- 
plevin.      27-39 

1.  Right  of  possession  necessary  and  sufficient. 

2.  Qualified  possession  or  special  property. 


Vlll  CONTENTS. 

6.  PlaintifT  must  prevail  upon  his  own  title. 
10.  I'leadiiif^,  evidence,  &c.,  in  relatioTi  to  property  and  possession. 
14.  Cases  of  manufacture  to  order,  incomplete  sale  or  delivery,  &c. 

20.  In  case  of  the  decease  of  a  party  interested. 

21.  Title  gained  b^-  service  of  a   writ  of  replevin  and  bond;  sale  by  the  plaintiff  in 
replevin. 

23.  Title  and  possession  of  the  defendant. 


CHAPTER  V. 

Replevin  for  Pboperty  taken  by  Legal  Process   .        .    40-57 

1.  General  rule  as  to  property  in  custody  of  the  law. 

2.  Goods  in  possession  of  the  plaintiff. 

3.  Owner  may  replevy,  where  the  property  is  taken  on  process  against  a  third  person. 

4.  What  may  be  taken  by  virtue  of  the  writ  of  replevin  itself. 

7.  Liability  of  an  attaching  or  execution  creditor. 

8.  Title  or  possession  necessary  to  maintain  the  action. 
17.  Defence  of  an  officer;  plea,  evidence,  judgment,  &c. 
29.  Replevin  in  cases  of  successive  processes. 

32.  Replevin  in  favor  of  an  officer  holding  by  legal  process. 

37.  What  possession  of  an  officer  will  sustain  an  action  against  him. 

38.  Successive  suits  of  replevin;  justification  of  officer  under  the  replevin  writ. 
41.  Miscellaneous. 

CHAPTER  YI. 
Parties  in  Replevin 58-72 

1.  Servant,  assignee,  &c. 

1  d.  Joint  parties  —  plaintiffs. 
11.  Joint  defendants. 
15.  Death  of  a  party  interested. 
20.  Husband  and  wife. 

22.  Principal  and  agent. 

23.  Parish. 

24.  Buyer  or  seller,  in  case  of  alleged  fraud. 
28.  Conditional  sale. 

31.  Mistake. 

32.  Replevin  in  case  of  mortgage,  pledge,  and  lien. 


CHAPTER  VII. 

Writ,  Bond,  Declaration,  Pleadings,  Evidence,  etc.    .     73-116 

1.  (and  note.)  General  remarks  as  to  pleadings  and  practice,  and  the  statutory  changes 
on  these  subjects;  points  of  practice. 

2.  Description  of  the  property. 
6.  Statement  of  title. 

9.  Motions,  pleadings,  &c.,  subsequent  to  the  writ  and  declaration  —  motion  to  dismiss. 

16.  Pleadings  —  avowry  and  cognizance. 

17.  General  issue ;  non  cepit  and  detinet. 


CONTENTS.  IX 


18.  Title  to  the  property. 

26.  Several  pleas. 

27.  Pleading;  in  case  of  seizure  by  legal  process,  distress,  &c. 
36.  Replication,  &c. 

51.  Amendment. 

52.  Evidence. 
71.  Verdict. 
75.  Damages. 

77.  Verdict  and  judgment  in  special  cases. 
84.  Judgment  for  return. 


CHAPTER  VIII. 


Replevin  Bonds .         .     117-138 

1.  Necessity  of  a  bond. 

3.  Form  of  the  bond;  by  what  informalities  avoided. 

13.  Time  of  commencing  a  suit  upon  the  bond;  judgment  in  the  replevin  suit. 

17.  Damages. 

30.  Defence  to  an  action  on  a  replevin  bond. 

42.  Pleadings  and  evidence. 

46.  Construction  of  replevin  bonds;  prosecution  of  the  replevin  suit;  final  judgment,  &c. 

50.  Efl'ect  of  tiie  death  of  a  party. 

54.  Appeal  and  review. 


BOOK    II. 


Disseisin,  Ejectment,  Real  Action  ....     139-230 

1.  Recovery  of  real  property  by  action ;  practice  in  the  United  States  and  in  England ; 
real  action;  ejectment. 

2.  Entry. 

8.  Title;  general  requisites;  as  against  trespassers,  &c. 

10.  Ejectment  requires  ownership;  grounds  of  title. 

13.  Conflicting  titles;  claimants  under  the  same  person. 

15.  Defence;  title  in  a  third  person. 

16.  Equitable  title,  whether  sufficient  for  plaintiff  or  defendant. 
22.  Equitable  title  arising  from  a  purchase  of  the  land. 

33.  Documentary  title;  title  by  public  grant,  &c. 

35.  Title  by  deed. 

46.  Vendor  and  purchaser. 

49.  Title  bj'  execution. 

54.  Ejectment  and  adverse  title  in  connection  with  possession. 

56.  Adverse  possession;  disseisin;  ouster. 

64.  Constructive  or  implied  possession. 

71.  Possession  is  hut pi'imd  facie  evidence  of  title. 

74.  Possession  of  the  defendant. 

75.  Successive  and  continuous  possession. 

76.  Notice,  in  connection  with  adverse  possession. 


CONTENTS. 

78.  Estoppel  against  denial  of  title. 

79.  Abandoment  of  title. 

84.  Parties  in  ejectment  —  the  commonwealth. 

85.  Party  beneficially  interested. 

88.  Death  of  party  in  interest.     Heirs,  devisees,  executors,  &c. 
100.  Miscellaneous  cases. 
102.  Joint  title. 

124.  Disseisin  and  ejectment  as  between  parties  jointly  interested. 
126.  Pleadinj!;  —  declaration. 
132.  Pleadings  of  the  defendant. 
143.  Evidence. 

151.  Damages;  mesne  profits;  improvements. 
156.  Verdict  and  judgment. 


BOOK    III. 

PLEADING. 

CHAPTER  I. 
General  Rules  of  Pleading    ......    231-261 

1.  Tort  and  contract;  definition  and  purposes  of  pleading. 
2  a.  Recent  statutory  changes  on  the  subject. 

3.  Pleadings  must  state  facts. 

4.  Pleading  in  case  of  statutes. 

8.  Allegation  of  direct  or  immediate  injury. 

8  a.  Allegation  that  the  plaintiff  was  not  in  fault. 

9.  Variance;  the  pleadings  and  evidence  must  conform;  limitations  and  exceptions. 
11  a.   Truth  of  a  plea. 

11  b.  Departure. 

12.  Directness  and  certainty. 

14  a.  Pleading  in  case  of  fraud. 

15.  Statement  of  a  legal  conclusion. 


CHAPTER  II. 
Parties 262-273 

1.  Plaintiff;  party  injured;  legal  right. 

6.  Name  and  description. 
11.  Joint  parties;  plaintifis. 
20.  Joint  defendants. 
25.  Pleading  in  case  of  joinder. 
20.  Construction  of  statute. 
32.  Trust. 


CONTENTS.  XI 

CHAPTER    III. 

The  General  Issue  and  Subsequent  Pleadings         .        274-281 

1.  As  a  defence  to  the  action. 
4.  In  mitifTiition  of  damages. 

6.  Wliat  shall  be  construed  as  a  denial ;  implied  admissions. 
8.  Miscellaneous  points. 

11.  Replication,  &c. 

CHAPTER  IV. 

Tort  and  Contract.  —  Fraud 282-300 

1.  Joinder  of  tort  and  contract;  erroneous  pleas,  &c. 

5    Pleading  in  case  of  fraud. 
11.  P;irties  in  case  of  fraud — joint  parties,  &c. 
17.  Fraud — joinder  of  several  causes  of  action. 
20.  Variiince  in  case  of  fraud. 
23.  Defence  of  fraud;  rescinding  and  restitution. 

CHAPTER  V.  * 

Pleading  in  Trespass 301-324 

1.  General  remark;  statutory  law;  action  of  trespass. 
3.  Declaration;  description  of  property,  &c. 

8.  Statutory  trespass. 

9.  Time;  contiiuiando.  Sec;  number. 

16.  Pleas  in  trespass;  general  issue;  justification. 

17.  Statutory  moditications. 

27.  Plendlng  of  title  before  justices  of  the  peace. 

34.  ^Miscellaneous  pleas. 

37.  Joinder  of  action;  trover;  different  trespasses;  several  counts. 

45.  Replication. 

50.  New  assignment. 

58.  Joinder  of  trespass  and  other  forms  of  action;  statutory  changes. 

68.  Trespass  to  the  person;  assault  and  batterj'. 

CHAPTER  VI. 

Pleading  in  the  Action  on  the  Case,  including  Trover    325-339 

1.  General  rule;  nature  of  the  action. 

2.  Nuisance,  negligence,  and  conversion. 

2  a.  Nuisance;  distinction  from  trespass;  declaration. 

7.  Subsequent  pleadings. 
10.  Negligence;  declaration. 
13    Subsequent  pleadings. 

li>  a.  Conversion;  trover  and  case. 

20.  Declaration. 

25.  Subsequent  pleadings. 


xii  CONTENTS. 

CHAPTER    VII. 

Pleading  ix  Actions  for  Injukles  to  the  Person.  — 

False  Imprisonment 340-346 

1.  General  remark. 

2.  False  imprisonment;   declaration;  distinction  between  this  action  and  the  action  for 
malicious  prosecution. 

5  a.  Subsequent  pleadings. 

CHAPTER  VIII. 

Pleading  in  Actions  for  Libel  and  Slander,  and  Mali- 
cious Prosecution 347-861 

1.  General  remark. 

2.  Declaration. 
12.  Counts. 

18.  Joinder  of  slander  and  malicious  prosecution. 

19.  Innuendo. 
24.  Colloquium. 

27.  Words  in  a  foreign  language. 

28.  Miscellaneous  points  as  to  the  declaration. 
31.  Variance. 

36.  Miscellaneous  points  of  practice. 

39.  Pleading  subsequent  to  the  declaration. 

53.  Malicious  prosecution. 

CHAPTER  IX. 

Pleadings  in  Actions  for  Injuries  to  Property         .     362-371 

1.  General  remark  —  possession. 
4.  Watercourses  and  mills. 
14.  Lights,  &c.;  common;  patent. 

CHAPTER  X. 

Pleadings  in  Actions  for  Injuries  to  Relative  Rights  ; 

Officers  of  the  Law         ......     372-378 

1.  Justices. 

2.  Clerks. 

3.  Sheriffs,  &c. 


CHAPTER  XL 

Pleadings  in  Actions  against  Railroads  and  Towns, 
and  in  Cases  of  Master  and  Servant,  Bailment, 
Landlord,  &c.,  Seduction 379-390 

1.  Railroads. 

12  a.  Highways  —  towns. 


CONTENTS.  XIU 


22.  Master  and  servant. 

23.  Innkeepers. 
26.  Carriers. 

32.  Landlord  and  tenant. 
35.   Ci-im.  con.  and  seduction. 


BOOK     IV. 


EVIDENCE  IN  ACTIONS  FOR  TORTS. 

CHAPTER   I. 
General  Rules  of  Evidence 391-400 

1.  Proof  of  the  affirmative  of  the  issue;  exceptions  to  the  general  rule. 

3.  AfUrmative  proof  of  wrong  or  illegality;  fraud;  official  neglect  or  misconduct,  &c. 

5.  Proof  as  to  possession. 

7.  Burden  of  proof;  to  what  it  extends. 

8.  Change  in  the  burden  of  proof. 

9.  Nonsuit  for  want  of  proof. 

10.  Presumptions. 

11.  Presumption  of  innocence  as  to  official  conduct;  possession,  &c. 

12.  Reasonable  doubt. 

14.  Miscellaneous. 

IG.  Rebutting  evidence. 

CHAPTER  II. 
Evidence  op  Oplnlon,  Reputation,  Custom,    &c.  .    410-435 

1.  General  rule  —  experts. 
3.  Taking  of  land  by  railroads,  &c. 
7.  Miscellaneous  cases  relating  to  land. 
10.  Injuries  arising  from  defective  roads,  &c. 

15.  Bodilj-  health  and  disease. 

23.  Opinions  predicated  upon  assumed  or  hj'pothetical  facts  or  premises. 

25.  Miscellaneous  points  as  to  the  opinions  of  experts  and  others. 

43  a.  Intention. 

44.  Reputation  and  character. 

50.  Rumor  and  report. 

53.  Custom  and  usage. 

55.  Distinction,  as  to  evidence  of  reputation  and  of  specific  conduct  or  facts. 


CHAPTER  III. 
Admissions  ant)  Declarations 436-473 

1.  Admissions  of  a  party  against  himself. 

2.  Effect  of  admissions;  how  controlled  and  construed;  implied  admissions. 
6.  Admissions  made  in  attempts  to  compromise. 


XIV  CONTENTS. 

8.  Admissions  of  agents,  oiScers,  &c. ;  admissions  connected  or  unconnected  with  acts; 
questions  of  time. 

10  a.  Declarations,  of  parties  not  against  their  interest,  and  of  third  persons;  res  gestce. 

11.  In  case  of  bodily  injury  or  disease. 

15.  Boundary  and  title. 

16.  In  case  of  legal  process. 

17.  IMiscellaneous  examples. 

18.  Limitations  of  the  general  rule;  must  be  sim^Xy  ex2}lanatoi-y,  not  narrative ;  questions 
of  time,  place,  motive,  and  purpose. 

24.  Declarations,  &c.,  of  a  joint  party. 

26.  Declarations  in  a  party's  own  favor  accompanying  acts;  res  gestm. 

28.  Estoppel  by  admission. 

30.  Acts  and  declarations  of  third  persons. 

81.  As  to  possession. 

35.  Declarations  of  persons  connected  with  a  party. 

39.  Declarations  in  case  of  alleged  fraud. 

44  a.  In  reference  to  title. 

47.  Evidence  of  the  acts  of  a  party  or  his  agent. 

49.  Declarations  in  writing. 

53.  Irrelevant  declarations. 

CHAPTER  lY. 

"  Res  Inter  Alios  Acta  " 474-488 

1.  General  rule. 

2.  Exceptions  —  fraud,  neglect,  illegality. 

12.  Actions  against  towns,  railroads,  &c. 
17.  Injuries  caused  by  gas. 

22.  Questions  of  time. 

24.  Evidence  of  reptttaiion. 

25.  Evidence  as  to  value  and  amount. 
34.  Motive,  intent,  malice. 

CHAPTER  V. 

Pakol  Evidence 489-495 

1.  General  rule. 

3.  In  case  of  fraud. 

4  a.  As  to  conveyances. 

5.  In  case  of  lease. 

6.  As  to  contracts. 

7.  Officer''s  return. 

8.  Loss  of  writings. 

15.  As  to  application  of  writings. 

CHAPTER  VI. 

Miscellaneous  Points  of  Evidence.  —  Variance  ;  Testi- 
mony OF  Parties 496-500 

1.  Variance. 

9.  Testimony  of  parties. 


CONTENTS.  XV 


CHAPTER    VII. 

ToET  AND  Contract.  —  Fraud  as  a  Ground  of  Action 

OB  Defence .        .         .     501-506 


CHAPTER  VIII. 

Injuries  to  the  Person  ;  Assault  and  Battery  ;  False 

Imprisonment  ;  Injuries  to  Health  .        .        .    507-510 

1.  Assault,  &c. 
6.  False  imprisonment. 
12.  Injuries  to  health. 

CHAPTER  IX. 

Evidence  in  Actions  for  Libel  and  Slander       .        .     511-525 

1  a.  Proof  of  other  words  than  those  allef^ed. 

3.  Evidence  as  to  the  understanding  of  the  words. 

5.  As  to  damages. 

8.  Variance. 
10.  Malice. 

17.  Evidence  in  mitigation  of  damages;  repetition;  report;  character;  property. 
25.  Justification  of  the  truth. 


CHAPTER  X. 
Miscellaneous  Injuries  to  Property      ....     52(>-530 

1.  "Watercourse. 

2.  Way. 

4.  Negligence;  carrier;  railroad,  &c. 
9.  Conversion. 
9  e.  Copyright. 
10.  Patent. 

CHAPTER  XI. 

Evidence  in  Actions  relating  to  Public  Officers        .     531-539 

1.  Evidence  of  being  reputed  and  acting  as  an  ofBcer;  act  of  deputy. 

4.  Presumption  and  burden  of  proof  in  ca^e  of  officers. 

7.  Return  of  an  officer,  and  evidence  relating  thereto. 

14.  Declarations  and  admissions. 

21.  Records,  writs,  executions,  &c. 

24.  Miscellaneous  cases. 


XVI  CONTENTS. 


CHAPTER  XII. 

Evidence  in  case  of  Husband  and  Wife,  and  Parent 

AND  Child 540-543 

1.  Ci-im.  con. — proof  of  marriage. 

2.  Proof  in  reference  to  adultery,  damages,  &c. 
8.  Abduction  of  wife. 

10.  Seduction  of  daughter. 
13.  Abduction  of  daughter. 


BOOK     V. 

DAMAGES. 

CHAPTER   I. 
General  Rules  op  Damages 544-  53 

1.  General  remarks. 

1  b.  A  question  for  the  jury;  subject  to  any  legal  rule  or  measure  of  damages. 

4.  Nature  of  damages ;  general  and  special. 

5.  Possible  injury;  de  minimis,  &c. 

6.  Liberal  construction  in  favor  of  the  plaintiff;  exceptions  and  limitations. 

7.  Mode  of  ascertaining  damages ;  writ  of  inquirj',  &c. 


CHAPTER  II. 

Amount  of  Damages  ;]  Nominal  Damages  ;  Mitigation 

OF  Da3iages 554-569 

1.  Nominal  damages. 

2.  Mitigation  or  reduction;  recoupment;  set-off. 

6.  Equitable  and  statutory  grounds  of  reduction ;  counter  claim. 
15.  Keturn  of  the  property  taken;  application  of  proceeds  to  the  plaintiff's  benefit. 


CHAPTER  III. 

Damages  in  Reference  to  Time      .        .        .        .        .     570-587 

1.  General  remark  as  to  time. 

2.  Value  of  property  at  the  time  of  taking,  &c.,  the  general  measure  of  damages. 

4.  Prospective  or  remote  damages. 

5.  Damages  estimated  to  the  time  of  trial. 

8.  One  recovery  a  bar  to  a  second  action  for  continuing  damage. 

9.  Exceptions  to  the  rule  of  prospective  damages. 

10.  Miscellaneous  cases  as  to  the  time  for  which  damages  shall  be  estimated. 
15.  Damages  resulting  in  part  from  the  plaintiff's  own  fault  or  neglect. 


CONTENTS.  XVll 


CHAPTER  IV. 

Measure  of  Damages  in  Actions  for  Particular 

Wrongs 588-594 

1.  General  remark. 

2.  Fraud  or  deceit. 

3.  Taking  or  detention  of  personal  property;  including  trover  and  trespass. 
9.  Trover. 

22  e.  Trespass. 

26.  Statutory  remedy. 

CHAPTER  V. 

Special,  Exemplary,  and  Vindictive  Damages;  Mal- 
ice, ETC 595-609 

1.  Nature  and  definition  of  special  damages. 

2.  Must  be  expressly  alleged. 

3.  Exemplary  damages. 

5.  As  depending  on  malice,  insult,  Sec. 

9.  As  afl'ected  by  actual  or  possible  criminal  prosecution  for  the  same  act. 
12.  Injuries  to  propertj',  not  indictable. 
16.  Disallowance  of  exemplary  damages;  misconduct  of  the  plaintiff. 

CHAPTER  VI. 

Damages  for  Fraud,  etc  ......     GlO-615 

1.  General  remarks. 

3.  General  rule  of  damages;  value  of  the  propertj',  «&€. 

5.  Miscellaneous  cases. 

7.  Exemplary  damages. 

8.  Miscellaneous  cases. 

CHAPTER  VII. 

Injuries  to  the  Person;  Assault  and  Battery;  False 

Imprisonment  ;  In,juries  to  Health         .         .         .     G16-619 

1.  Assault,  &c.,  — exemplary  damages. 

2  a.  Mitigation  —  provocation;    criminal  prosecution,  (S:c. 

6.  False  imprisonment,  —  malicious  arrest. 
11.  Injury  to  health. 

CHAPTEPt  Vlll. 

Libel,  etc.,  and  Malicious  Prosecution  .         .         .     620-G25 

1.  Measure  and  grounds  of  damages;  special  and  exemplary  damages;  wealth  of  the 
defendant. 

10.  Plea  of  the  truth;  mitigation  of  damages. 
15.  Malicious  prosecution. 

b 


XVI 11  CONTENTS. 


CHAPTER  IX. 

Negligence  ;    Nuisance  ;    Watercourses  ;    Railroads  ; 

Towns 62G-G37 

1.  Negligence. 

4.  NuiMiiice;  AVatercourse ;  Patent;  Trade-mark. 
11.  Kaitroatis. 

19.  Towns;  Highways. 

CHAPTER  X. 

Damages  in  Actions  Against  Officers  .         .         .     638-651 

1.  General  rule  of  damages,  as  affected  toy  the  motives,  &c.,  of  the  defendant. 
8.  For  failing  to  return  process. 

10.  For  false  return. 

14.  For  wrongful  taking  of  property,  —  action  by  the  defendant  in  the  process. 
16.  For  loss  of  property  taken. 

18.  Action  by  one  not  party  to  the  process  for  seizure  of  his  property;  value  of  the  prop- 
erty; additional  damages;  motives  of  the  oflicer. 

24.  Damages  for  neglect  to  levy,  &c. 

29.  Mitigation  of  damiiges;  application  of  proceeds  to  the  plaintiff's  benefit,  &c. 

31.  Damages  for  neglect  to  arrest. 

82.  For  escape;  taking  insufficient  bail,  &c. 
42.  Miscellaneous  cases. 

CHAPTER  XI. 

Damages  in  Case  of  Principal  and  Agent,  Master 

AND  Servant,  Bailment     ......     652-663 

1.  Master  and  servant;  principal  and  agent; — action  of  the  principal  against  the  agent. 

6.  Li;ibility  of  a  principal  for  liis  agent. 

7.  Action  of  agent,  &c  ,  agidnst  his  principal,  Sec. 

8.  Of  master  against  third  person. 

9.  Bailment. 

11.  Pledge. 

14.  Common  carriers;  neglect  or  dclnj'  in  delivering. 

19.  Injury  to  property  from  neglect. 
22.  Special  and  prospective  damages. 

25.  Miscellaneous  points. 

29.  Damages  in  actions  by  bailees. 

32.  Telegrams. 

CHAPTER  XII. 

Landlord  and  Tenant  ;  Mortgage  ....     664-669 

1.  Action  by  reversioner  against  a  third  person. 

5.  By  lessee  against  a  third  person. 

6  ff.  By  a  third  person  against  lessee. 
7.  By  lessee  against  landlord. 


CONTENTS.  XIX 

13.  For  distress. 

18.  For  fraud. 

19.  By  landlord  against  tenant. 

20.  Mortgage. 

CHAPTER  XIII. 

Damages  for  the   Taking   or    Conversion  of  Notes 

AND  OTHER  Paper  Securities 670-675 

1.  Conversion,  &c.,  of  negotiable  securities. 

5.  Neglect  in  the  collection  of  notes,  Sec. 

8.  Kefusal  to  transfer  stock. 

9.  Miscellaneous  cases. 

CHAPTER  XIV. 

Wrongs  connected  with  Sale        .....     676-678 

1.  General  remarks. 

2.  Hu}-er  asiainst  seller;  refusal  to  deliver,  conversion,  &c. 

3.  Conditional  sale. 

6.  Fraud. 

CHAPTER  XV. 

Interest,  Costs,  Counsel-Fees,  Expenses      .         .         .     679-683 

1.  Interest. 

3.  Costs  and  expenses. 

CHAPTER  XVI. 

Injuries  Resulting  in  Death 68-4-693 

CHAPTER  XVII. 

Husband  and  Wife;  Parent  and   Child;   Seduction; 

Abduction 694-695 

CHAPTER  XVIII. 

Marine  Torts 606-698 

1.  Prolits  of  the  voynge. 
6.  Collision. 

10.  Capture. 

14.  Liability  of  master  and  owner. 


XX  CONTENTS. 


CHAPTER  XIX. 

Miscellaneous  Points;  Joint  and  Several  Liability; 
Double  or  Treble  Damages;  Remittitur;  Exces- 
sive Damages  .........     699-708 

2.  Joint  and  several  damages. 
10.  Statutor}'  damages;  double,  treble,  &c. 
18.  Amount  of  damages  clMimed  in  the  declaration ;  remittitur. 
28.  Exces'^ive  damages;  new  trial. 
37.  Too  small  damages. 
39.  Miscellaneous. 


INDEX  TO  CASES  (TIED. 


A. 

Abbey  V.  IVIerrifk 
Alibott  V.  Swiilcnhower 
Abeel  r.  Van  Gelder 
AbraiiKs  v.  Ervin 
Academy  v.  Ilaikrtt 
Acker  v.  Campbull 

V.  Finn 

V.  Wliite 
Ackerman  v.  King 
Ackerson  v.  Erie 
Ai'kley  v.  Chester 
Acton  V.  Knowles 
Adams  v.  Adams 
V.  Barry 
V.  Bissell 
V.  Blodgett 
V.  ]\rDonald 
V.  Trigg 
Adler  v.  Sewell 
AfFerty  v.  Connover 
Agee  V.  Williams 
Agnew  V.  Steamer 
Aliern  v.  Collins 
Aiken  v.  Stewart 
Aikin  v.  Benedict 
Aitcheson  v.  Maddock 
Alcock  V.  Wilsliaw 
Alden  v.  Carver 
Alexander  v.  Eastland 
V.  Helber 
V.  Macauley 
Aldricb  v.  Palmer 
AUbrd  V.  Bradcen 

V.  Dewin 
Alger  V.  Curry 
Allen  V.  Blunt 

V.  Conrad 

V.  Craig 

V.  Doyle 

V.  Dunlap 

V.  Prater 

V.  Scott 


220 
161 
202 
694 
683 
45 
124 
16 
131 
606 
639 
255 
9,  20 
596 
335 
694 
658 
277 
193 
491 
248 
431 

230,  547 
306 
181 
395 
224 
28 
213 
563,  645,  650 
538 

646,  549 
59 
193 
318 
631 
655 
602 
641 
186 
460 

313,  314 


Allen  V.  Shackleton 
V.  Smith 
V.  Sta])les 
V.  Wiiiard 
V.  Woodlbrd 

Allie  V.  Schmitz 

Allison  V.  Chandler  546, 

AUred  v.  Bray 

AUsop  V.  AUsop 

Alston  V.  Hu<:gins 

Altemose  v.  Ilul'smitb 

Altes  r.  Ilinckler 

Ahhof  V.  Wolf 

Aniann  v.  Damm 

Amer  v.  Longstreth 

American  v.  Bradford 
V.  Haggard 
V.  Parsons 

Ames  V.  Harper 
V.  Hazard 

Amiable 

Ammerman  v.  Crosby 

Amos  V.  Sinnott 

Amsden  v.  jMaiichester 

Anderson  v.  Dunn 
V.  Fisk 
V.  Hapler 
V.  Hill 
V.  Lane 
V.  Parker 
V.  Rhodiis 
V.  Sutton 
V.  Taleott 
V.  Tysen 

Andre  v.  Johnson 

Andrews  v.  Lymh 

t'.  Cliadbourne 
V.  Stone 

Angell  V.  Keith 

A.ngier  v.  Taunton 

Angrave  v.  Stone 

Annis  V.  Bi<rney 

Anson  v.  Dwiy;ht 


669 

702 

4<i 

401 

134 

194,  196 

598,  599,  667 

573 

347 

581 

186 

224 

685,  688 

353 

608 

276 

264,  408 

670 

198 

358 

696,  698 

360 

71,  79,  81 

502,  503 

85 

217,  224,  227 

10 

320 

96 

185 

396 

188,  403 

83 

106 

75 

283 

247 

616 

53 

591 

477 

14 

423 


XXll 


INDEX   TO    CASES   CITED. 


Anstice  v.  IIowps 

83 

Backus  V.  Clark 

247 

Anthony  v.  (lillu'rt    308,  562, 

581, 

598 

Hacot 

V.  Keith 

707 

V.  Smith 

419 

Badd  1 

J.  Bingham 

319 

V.  Stinson 

414 

Badtrer  v.  Phmney 

5,  6,  93 

Antoinc  v.  Ridge                 458, 

548 

550 

Badhim  v.  Tucker 

117,  137 

Apalachicola  v.  Apalacbicola 

219 

Baer  i 

.  Martin 

7 

Apollon 

696 

Baggo 

tt  V.  Fleming 

185 

Apple  V.  Rambo 

244 

Bagshaw  v.  Seymour 

293 

Appleton  V.  Barrett 

84 

Bailey 

V.  Capelle 

633 

Apps  V.  Day 

707 

V.  Ellis 

74 

AroederkiR'  v.  Kelk 

308 

V.  Jeffords 

581 

Ar<iuello  V.  Ediiiger 

153 

V.  New 

403 

Armory  v.  Dolamirie 

3!)8 

V.  Shaw 

626,  706 

Armstrong  v.  Hinds 

203, 

206 

V.  Trumbull 

481 

V.  Pierson 

621 

V.  Warren 

274 

V.  Risteau         172, 

181, 

183 

V.  Wiggins 

343 

V.  Smith 

411 

Baily 

V.  Trammell 

199 

Arnold  v.  Allen 

134 

Bain  i 

.  Clark 

84 

V.  Baily 

128 

Baird 

V.  Bell 

163 

V.  Sudlara 

401 

V.  Dunning 

243 

Arrington  v.  Wilmington 

661 

V.  Porter 

17 

Arrowsmith  v.  Durell 

170 

Bakei 

V.  Bailey 

247 

Arter  v.  People 

123 

V.  Fales 

5,  6,  28 

Arthur  v.  Gayle 

468 

V.  Findley 

178 

Arundel  v.  Trevill 

5 

V.  Freeman 

645 

Asher  V.  Whitiock 

170 

V.  Haskell 

468 

Ashley  v.  Ashley 

363 

V.  Kellv 

428,  429 

V.  Warner 

667 

V.  M'Duffie 

53 

Ashmead  v.  Colby 

476 

V.  M'Ginnis 

259,  290 

Astley  V.  Astley 

541 

w,  Wheeler 

647,  591 

Atkins  V.  Lewis 

146 

Baldwin  v.  Buifalo 

396 

Atkinson  v.  Holcomb 

12 

V.  Cash 

74 

Atlantic  V.  Campbell 

416 

V.  Hildreth 

348 

Attack  V.  Bramvvell 

668 

V.  Porter 

661 

Atteberry  v.  Powell 

514 

,  519 

V.  Simpson 

176 

Attersoll  v.  Stevens, 

665 

V.  Soule 

354 

Atwell  V.  IM'Lure 

141 

,  229 

V.  Western 

430,  634 

Atwood  V.  Dearborn 

430 

V.  Whittier 

117 

V.  Fricett 

593 

Bales 

V.  Scott 

75,  107 

Augusta  V.  McElmurry 

247 

Ballance  v.  Flood 

146 

Austin  V.  Bailey 

396 

Ballard  v.  Fuller 

476 

V.  Downer 

191 

Ballou  V.  Farnum 

574 

V.  N.  Y. 

379 

V.  Jones 

29 

V.  Rawdon 

284 

,  593 

Ballow  V.  O'Brien 

92 

V.  Waddell 

314 

Baltimore  v.  Blocher 

593,  600 

V.  Wilson 

603 

V.  Breinig 

606 

Autauga  v.  Davis 

447 

V.  Brown 

490 

Avent  V.  Hord 

219 

V.  Dalrymple 

674 

Avery  v.  Brown 

556 

V.  Gettie 

401 

Ayer  v.  Bartlett 

705 

V.  Smith 

528 

Ayers  v.  Hewett 

4 

V.  State 

689 

Ayres  v.  Bensley                 179 

,  198 

,  217 

V.  Thompson 

420 

Bancroft  ».  Blizzard 

92 

Banfield  v.  Parker 

454 

B. 

V.  Whipple 

429 

Bank 

V.  Burton 

675 

Babb  V.  Mackey 

256 

V.  Eastman 

165 

V.  Talcott 

72 

V.  Marston 

653 

Backentoss  v.  Stabler 

692 

V.  Reene 

673 

INDEX   TO    CASES    CITED. 


xxni 


Bank  v.  Rutland 

124 

Baxter  v.  Taylor 

664 

Banks  v.  Angell 

22 

V.  Winooski 

385 

V.  Wlic'tstone 

*'9 

Bayard  v.  Malcolm 

232 

Baptist  V.  Turner 

148 

Beach  V.  Hancock 

61)3 

Barber  v.  Killiourn 

607 

Beal  V.  Finch 

700 

1'.  Lt'siter 

360 

V.  Harmon 

219 

r.  Mi-rriaiu 

420,  447 

Beals  V.  Guernsey 

679 

Barbour  v.  W'hha 

2S 

Beard  v.  Federy 

206 

Barclay  v.  Tnfrham 

685 

V.  Hall 

169 

Barhatn  v.  INIassey 

104 

Beaty  v.  Swarthout 

537 

Barliytc  v.  Hiijrlies 

659 

B^aubeu  v.  Portland 

402 

Barker  v.  Coleman 

460 

Be.iver  v.  Manchester 

257 

Barley  f.  Cannon 

254 

Hel)ee  v.  Scheidt 

473 

Barnion  v.  B:iltiniore 

547 

Beckford  v.  IMontague 

538 

Barnard  v.  Simms 

IbO 

Beckwith  v.  Griswold 

576 

Barnavvell  i'.  Tlireadgill 

399 

V.  Mollolian 

445 

Barnes  r.  Bartlctt 

59,  100 

V.  Philleo 

35 

V.  Jamison 

150 

V.  Sydebotham 

421 

r.  Martin 

694 

Bedell  V.  Stevens 

284 

r.  Taiinehill 

87 

Beebe  v.  De  Baun 

38 

Barnet  v.  Doiiijlass 

104 

Beecher  v.  Denniston 

421, 

592 

Barnett  r.  Allen 

351 

Beers  v.  Wuerpul 

15 

V.  Reed 

599,  624 

Begg  V.  Whittier 

652 

V.  Tliouipson 

592 

Behn  V.  Kemble 

286 

Barnhart  v.  Petit 

179 

Behrens  v.  Allen 

358 

Ban-  V.  Ilufjlies 

24,81 

Belcher  v.  Van  Diizen 

79 

Barrett  v.  Tewksbury 

291 

Belden  v.  Grannice 

320 

V.  Warren 

17 

Bell  V.  Bartlett 

113,  117 

137 

Barry  v.  Adams 

202 

V.  Brown 

186 

279 

r.  Bennett 

584 

V.  Cunningham 

653 

V.  O'Brien 

112 

V.  Ham 

146 

V.  Sinclair 

123 

V.  Midland 

516 

Barstow  v.  Newman 

148,  178 

V.  ISIorrison 

599 

700 

Bartges  v.  O'Neils 

262,  267 

V.  Troy                318 

409,  439 

473 

Bartlett  v.  Briekett 

100,  110 

V.  Woodward 

467 

468 

V.  Decreet     425, 

433,  471,  586 

Bellefontaine  v.  Bailey 

418 

V.  Greenleaf 

667 

Benares 

696 

V.  Judd 

151 

Benge  V.  Creagh 

184 

V.  Kidder 

62 

Benjamin  v.  Benjamin 

564 

V.  Prescott 

252 

Benkard  v.  Babcock 

425 

Barton  v.  Holmes 

611 

Bennet  v.  Lockwood 

682 

Bartow  v.  Draper 

171 

V.  Vinyard 

641 

Bartram  v.  Stone 

607,  617 

Bennett  v.  Alcock 

706 

Baskett  v.  Timlall 

501 

V.  Allen 

117 

,  123 

Basseft  v.  Armstrong 

46 

V.  Clemence 

307, 485, 

499. 

V.  Porter 

399 

582 

V.  Salisbury 

564 

V.  Couchman 

161 

Batclieller  v.  Pratt 

160 

V.  Fail 

420 

Bateman  v.  Goodyear 

546,  701 

V.  Hood 

62 

Bates  V.  Ruchanan 

110 

V.  Judson 

296 

V.  Campbell 

144 

V.  Tlionipson 

327 

V.  Courtwright 

561,  662 

V.  Griilin 

414 

t'.  Green 

652 

Benson  v.  ^Maiden 

682 

V.  Sehoonover 

132 

Bent  V.  Bent 

7 

9,  90 

V.  AVilbur 

70,  72 

Bentley  v.  Bustard 

388 

Batb  V.  Miller 

112,  114 

Benton  v.  Dale 

702 

Batliishill  r.  Keed 

664 

Benz  V.  Hines 

206 

Batterton  v.  Yoakum 

145,  146 

Bequette  v.  Caulfield 

147 

,  186 

Battis  V.  Hamlin 

44,50 

Berger  v.  SmuU 

288 

XXIV 


INDEX   TO    CASES   CITED. 


Bergosch  v.  Kcevil 

273 

Blake  v.  Ham 

182 

Berghoff  v.  Ileckwolf 

127 

V.  Midland 

686 

Berne  v.  Boylo 

229 

V.  Sawin 

193,  214 

,  250 

Berry  w.  Borden 

323 

V.  Van  Tilborg 

2.S3 

V.  Da  Costa 

694 

Blanchard  v.  Brown 

156 

V.  Reed 

414 

V.  Child 

45 

V.  Vret'land 

316 

V.  Young 

472 

V.  Wliitaker 

187 

,230 

Bliss  V.  Badger 

65 

Berrynian  v.  Wise 

514 

V.  Cottle 

289 

Berthold  v.  Fox 

27,  103 

,  202 

V.  Franklin 

624 

V.  Ilolman 

10 

V.  Wilbraham 

481 

Bertie  v.  Pickering 

302 

Block  V.  M'Guire 

600 

Berton  v.  Lawrence 

375 

Blodgett  V.  Brattleboro' 

639 

,649 

Best  V.  Allen 

601 

V.  Farmer 

475 

Bettis  V.  Bailey 

120 

Blonkenship  v.  Cressillas 

264 

Betts  V.  Farmers' 

444 

Blood  V.  Adams 

323 

Beveridge  v.  Welch 

643 

V.  Keller 

366 

Beverly  v.  Burke 

560 

V.  Kemp 

310 

Bibby  v.  Carter 

331 

Bloomer  v.  Craige 

79 

Biencourt  v.  Parker 

159 

V.  Jerkel 

22 

Bigelow  V.  Gove 

319 

V.  Jubel 

81 

Biggers  v.  Pace 

676 

Bloomingdale  v.  Du  Rell 

440 

Biggs  V.  Clay 

508 

Blot  V.  Boicean 

652 

V.  D'Aquin 

686 

Blum  V.  Robertson 

183 

Bilbo  V.  Henderson 

56 

Blumenthal  v.  Brainerd 

262 

Bilcker  v.  Beeston 

377 

V.  Roll 

417 

Biles  V.  Holmes 

446 

Blun  V.  Robertson 

151 

Billings  V.  Berry 

630 

Board  v.  Greenebaum 

255 

V.  Gibl>s 

201 

Boardman  v.  Beckwith 

149 

207 

V.  Lafferty 

257 

373 

V.  Kibbee 

433 

Bills  V.  Vose 

19,  20 

V.  Woodman 

429 

Bingham  v.  Garnault 

321 

Boatright  v.  Porter 

168, 

432 

Birchard  v.  Booth 

441 

599 

Bockee  v.  Crosby 

145 

Bird  V.  Great 

393 

Bodley  v.  Ferguson 

152 

V.  Lisbros 

186 

Bogard  v.  Jones 

28 

V.  Pace 

469 

Bohanan  v.  Bonn 

142 

V.  Randall 

279, 

325 

Bolander  v.  Gentry 

280 

Birdsall  v.  Perego 

557 

Boiling  V.  Doneghy 

242 

Bishop  V.  Williamson 

570 

Bomberger  v.  Turner 

233,  278, 

615 

Bissell  V.  Beckwilh 

445 

Bond  V.  Mitchell 

77 

Bissill  V.  Williamson 

208 

V.  Quattlebaum 

549 

Black  V.  Camden      446, 

657,  658, 

660, 

V.  Ward 

638 

664, 

680 

Bondurant  v.  Lane 

644 

V.  Drury 

261 

Boner  v.  Ogden 

48,  bQ 

V.  Foster 

407 

Bonesteel  v.  Orvis 

105 

V.  Thornton 

451, 

462 

Bonner  v.  Coleman 

109 

V.  Tricker 

209 

Bonsall  v.  Comly 

23 

Blacketer  v.  Gillett 

327 

V.  M'Kay 

602 

Blackie  v.  Neilson 

336 

Boorman  v.  American 

388 

Blackman  v.  Johnson 

460 

Booth  V.  Ableman 

60,  51 

,  56 

V.  Wheaton 

94 

V.  Clive 

552 

Blade  v.  Chicago 

492 

V.  Small 

220 

Blain  v.  Coppedge 

165 

Borron's  v.  Landers 

29 

Blair  v.  Milwaukee 

546 

Boston  V.  Richardson 

177,  217, 

440 

V.  Ridgely 

373 

Bostick  V.  Brittain 

61 

V.  Smith 

145 

Boswell  V.  Green 

49 

Blake  v.  Dennett 

207, 

211 

Botkin  V.  Osborne 

265 

V.  p]verett 

409. 

469 

Boucicault  v.  Fox 

530 

V.  Graves 

456, 

464 

Boulard  v.  Calhoun 

609 

INDEX   TO   CASES   CITED. 


XXV 


Bonrk  r.  Rlpgs 
Bowen  v.  Aiibrt-y 

V.  Huntington 
V.  Ilutchins 
Bower  v.  Earl 

r.  Higbcc 
V.  Talinan 
Bowler  V.  Lane 
Bowles  V.  MFarland 
Bowman  i\  Bowman 
V.  Cornell 
V.  Eaton 
V.  Noyes 
V.  Parker 
Bowser  r.  Cravener 
Boyce  v.  Brown 

V.  California 
Boyd  V.  Brown 
Boyden  v.  Burke 
Boylar  v.  INIeeker 
Boyle  V.  Rankin 
Boynton  v.  Page 

V.  Tidwell 
V.  "W'illard 
Boyreau  v.  Campbell 
Bracegirdle  v.  Bailey 
V.  Orford 
Bradbury  v.  Bardin 
Bradford  v.  Edwards 
Bradlaugh  v.  Edwards 
Bradley  v.  Chamberlain 
V.  Gamellc 
V.  Gardner 
V.  Geiselman 
V.  Morse 
V.  Northern 
Bradshaw  v.  Treat 
Bradstreet  v.  Erskine 
Bradyll  v.  Ball 
Bragg  V.  Massie's 
Brake  v.  Board 
Braneh  v.  Branch 
Brancker  v.  Molynoux 
Brand  v.  Hammersmith 
Brandt  v.  Cra<ldock 
Brannin  v.  Johnson 
Bratton  v.  Mitchell 
Breading  v.  Bloeher 
Breasly  v.  Cox 
Breathed  v.  Smith 
Breeh  v.  Blancliard 
Breeding  v.  Taylor 
Bresee  v.  Stiles 
Brewer  v.  Beckwith 
V.  Fleming 
V.  Hyndman 
V.  Stevens 
Brewster  r.  Link 

V.  Silliman 


81,  110 

Brewster  w.  Striker 

180 

234 

Briee  v.  Lyde 

454 

647 

Bridge;  v.  Mason 

673 

44 

Bridgman  v.  Hopkins 

517,  622 

469 

Briggs  V.  Boston 

563 

10 

V.  Green 

492 

7,  13 

V.  Large 

23 

684 

V.  Mason 

874,  376 

233 

V.  New  York 

656 

396 

V.  Taylor 

531 

644 

Brine  v.  Great 

251,  369 

337 

Bristol  V.  Ciirdley 

595 

551 

British  v.  Thompson 

698 

674 

Britton  v.  Morse 

77 

216 

V.  South 

706 

233 

Broadwater  v.  Darne 

2 

546 

Brockman  v.  Berryhill 

706 

582 

Brockway  v.  Burnap 

39 

596 

Brogan  v.  Savage 

223 

213 

Bromley  v.  Wallace 

641 

7 

Bronson  v.  Green 

602 

85,  106 

Brooke  v.  Berry 

95 

343 

Brooking  v.  Dearmond 

187 

316,  392 

Brooks  V.  Hoyt 

640,  649 

163 

t;.  Wortman 

218 

517 

Brown  v.  Bissett 

48,  86 

616 

V.  Brigham 

119,  138 

432 

V.  liristol 

702 

516 

V.  Caldwell 

10 

500,  618,  707 

V.  Campsall 

67 

537 

V.  Chadsey 

509,  618 

58 

V.  Chicopee 

47 

511 

r.  Colson 

189 

581 

V.  Combs 

149 

105 

V.  Corey 

414,  635 

400 

V.  Cummings 

579,  617 

180 

V.  Emerson 

655 

630 

V.  Galley 

181 

16 

V.  Harmon 

235,  237 

461 

V.  Hayues 

d66,  677 

553 

V.  Keiler 

79 

113,  120,  122 

V.  King 

551 

339 

V.  Mallett 

235 

636 

V.  Martin 

255 

341 

V.  Parker 

135 

680 

V.  Perkins 

407 

80 

V.  Potter 

157 

2 '28 

V.  Pratt 

538 

11 

17.  Roberts 

179,  180 

143 

V.  Shields 

612 

344 

V.  Smith 

20,  6!»6 

145 

V.  Stanford 

109 

194 

V.  Woodworth 

327 

219 

Brownell  v.  Pacific 

381,  435 

11 

Bruce  v.  Learned 

100 

245 

V.  Mitchell 

145,  147 

192 

V.  Ogden 

3 

701 

r.  Priest 

431 

99 

Bruch  V.  Carter 

805 

XXVI 


INDEX   TO    CASES    CITED. 


Bruen  v.  Ogden 
Bnimskill  v.  James 
Kiuner  v.  Dyball 
Brush  V.  Blaiuliaid 
Bryan  v.  Averett 
V.  Gurr 
V.  IManning 
V.  Whitsott 
Bryant  v.  Bryant 
Buchanan  r.  Kinning 
Buck  V.  Blaiicliard 
V.  Colbath 
V.  In<;ersoll 
V.  Jjcwis 
V.  Renisen 
Buckingham  v.  Ilallett 
Buckner  v.  Charabliss 
Bud(i  V.  Bingham 
Biiddington  v.  Shearer 
Buel  V.  Davenport 
Buell  V.  Ball 
Buffiim  V.  New  York 
Building  V.  Sendmeyer 
Bull  V.  Griswold 

V.  Tibbs 
Bullis  V.  Montgomery 
Bullock  V.  Hayward 
Bunker  v.  Rand 
V.  Tufts 
Buntin  V.  Duchane 
Burden  ».  Mobile 
Burdick  v.  Glaske 
Burford  v.  Wible 
Burk  V.  Stewig 
Burke  v.  Table 

w.  Trevitt 
Burkle  v.  Luce 
Burnett  v.  Thompson 
Burns  V.  Jenkins 
Burnside  v.  Grand 
Burpee  v.  Sparahawk 
Burr  V.  Dougherty 
V.  Spencer 
V.  Van  Buskirk 
Burrell  v.  Lithgow 

V.  New  York 
Burridge  v.  Fogg 
Burt  V.  Dutcher 
Burton  v.  March 
Busenius  v.  Coffee 
Bushwood  V.  Pond 
Bussey  v.  Donaldson 
Bussing  V.  Jiive 
Butler  V.  Butler 
V.  Collins 
V.  Mchrling 
Butler  V.  Mercer 
V.  Porter 
Butman  v.  Hobbs 


4 
268 

65 

449,  461 

195 

356,  306,  517 

196 

7,  45 

256,  265 

346 

281 

66 

92 
117 

50 
160 
170 
302, 319 
700 
118 

66 

412,  416 

571 

601 

22 
465 
267 
167 
269 
565 
365 
365 
517 
258 
197,  210 
533 

16 
664 
490 
442,  695 
619 
9 
147 

22 
640 
695 
207 
592 
617 
210 
497 
647 

92 
220 
475,  703 
103 
604 
200 
405 


Bntner  v.  Chaffin  188 

Butt  V.  Clark  256 

Butter  u.  Viele  286 

Butters  v.  Haughwout  91 

Buttram  v.  Jackson  461 

Byers  v.  Rodabaugh  146,  219 


c. 


C.  &c.  V.  Morris  238 

Cable  V.  Dakin  101 

Cadiz  V.  Majors  149 

Cadogan  v.  Cadogan  541 

Cadwallader  v.  Berkheiser  154 

Cadwell  v.  Farrell  325 

Cady  V.  Eggleston  121 

Cage  V.  Phillips  657 

CahiJl  V.  Dawson  653 

Caldcleugh  v.  Hollingsworth         22,  23 

Caldwell  v.  Arnold  42,  55 

V.  Brown  688,  689 

V.  Cleadon  26 

V.  Eaton  566 

V.  Walters  219 

California  v.  Wright  278 

Calkins  v.  Hartford  480 

Call  V.  Allen  396,  435,  485 

V.  Chase  193 

Callahan  v.  Caffarata  246,  625 

V.  Burnett  563 

Callis  V.  Kemp  223 

Calvert  v.  Hannibal  383 

Cambria  v.  Tombs  224 

Cameron  v.  Savage  394 

Campbell  v.  Hancock  703 

V.  Head  103 

V.  Jones  75 

V.  New  England  391 

V.  Strong  537 

Campfield  v.  Johnson  310 

Canada  v.  Southwick  638 

Canal  v.  Grove  578 

Candee  v.  Pennsylvania  379 

Canning  v.  Williamstown  636 

Cannon  v.  White  222 

Caperton  v.  Scmidt  203 

Carder  v.  Baxter  157 

Carey  v.  Bright  566,  607 

Carlton  v.  Baldwin  466 

V.  Davis  54 

Carlyon  v.  Lannan  690 

Carman  v.  Johnson  158 

Carnall  v.  Wilson  191 

Carney  v.  Doyle  93,  107 

Carothers  v.  Van  Hagan  62 

Carpenter  v.  Crane  323 

Carpenter  v.  Cummings  644 


INDEX   TO   CASES   CITED. 


XXVll 


Carpenter  v.  Otiloy  150 

V.  Su^vcMis  129.  ftSg 

Carpentier  v.  (Gardiner      201,  221,  703 

V.  IMcndcnhall  201 

V.  Mitchell  201,  222 

V.  Webster  li)y 

Carr  v.  Carr  223 

V.  Duckctt  357 

r.  Moore  486,610 

V.  lloxbury  203 

Carriiigton  v.  (Joddin  212 

Carroll  v.  Carroll  168,  205 

V.  Granite  217,  473 

V.  Harris  HI 

V.  White  3J.S 

Carson  v.  Smith  21!i 

Carter  v.  Carter  290 

V.  Koezlev  234,  252 

V.  Sca<rgs'  20H 

V.  Wallace  306,  310,  319, 

336 

V.  White  284 

Carty  v.  Fen^teinaker  71 

Cary  v.  Ilotalinj;  7 

V.  Whitney  157,  221 

Case  V.  Colston  403 

V.  Pettee  123 

Cass  V.  Anderson  352,  406 

Cassin  v.  Delaney  625 

V.  Marshall  643,  646 

Castle  V.  Bader  257 

V.  Palmer  228 

Castro  V.  IMarzbach  310 

Caswell  V.  Hill  455 

Catawissa  v.  Armstrong  689 

Catlin  V.  Gunter  246 

Catterlin  v.  Mitchell  78 

Cavender  v.  Smith  192 

Cavendish  v.  Troy  411 

Caveriy  v.  Gray  471 

Cayward  v.  Doolittle  74 

Central  v.  Butler  393 

V.  Lowill  408,  440 

Chadwick  v.  Felt  153 

I'.  Lamb  667 

IK  Trower  235 

Chalfer  v.  Sherman  663 

Chaliii  V.  White  354 

Chamberlain  v.  Enfield  408 

V.  Porter  411 

V.  Robertson  294 

V.  Sliaw  563 

Chaniberlin  v.  Donahue  183 

V.  Murphy  551,  559 

Chambers  v.  Halsted  532 

V.  Hnnt  83,  84,  88 

V.  Lathrnp  551 

V.  liobinson  705 

Chambers  v.  Waters  130 


Champion  c.  Sessions 

265 

V.  Vincent 

549, 

604 

Champlain  v.  Valentine 

157, 

197 

Chandler  v.  Allison 

585, 

667 

V.  I  lowland 

268 

V.  Lincoln 

90 

V.  Smith 

122 

Chapin  u.  Curteninus 

218 

V.  Universalist 

148 

Chaplin  v.  Barker 

145 

Chapman  v.  Andrews 

52 

V.  Delaware 

147,  160, 

205 

V.  Ordway 

522 

Chase  v.  Allen 

82,84 

V.  Blaisdell 

654 

V.  Chase 

267 

V.  Dearljorn 

187 

V.  New  York 

585 

V.  Peck 

151 

Chastain  v.  Robinson 

467, 

474 

Cheeseman  v.  Kyle 

453 

Cheney  v.  Chen(;y 

195 

Cherry  v.  M'Call 

455 

Cheswell  v.  Chapman 

304,  315, 

604 

V.  Eastham 

146 

Chew  V.  Philippi 

154 

Chew's  V.  Chew 

190 

Chicago  V.  Allen 

580 

V.  Carter 

237,  329, 

381 

V.  Flagg 

632 

V.  George 

420 

V.  ]\rKean 

606 

V.  Powers 

689 

V.  Still 

392 

V.  Swett 

689 

690 

V.  Triplett 

393 

Child  u.  Allen 

305, 

306 

V.  Chappell 

181 

V.  Homer 

623 

Childers  v.  Bnmgarner 

189 

V.  Wooler 

378 

Cliildrens  v   Sarby 

638 

Childs  V.  Hart 

8 

V.  Lyons 

583 

V.  Shower 

222 

Chiles  V.  Drake 

329, 598, 

684 

Chinery  v.  Viall 

676 

Chini(piy  v.  Catholic 

149,  202, 

214 

Chinn  v.  M'Coy 

127 

V.  Russell 

27,  42,  55 

Choppin  V.  New  Orleans 

632 

Chrisman  v.  Davenport 

703 

Christman  v.  Floyd 

22 

("hubb  V.  Gsell 

518 

Church  V.  Meeker 

172 

Churchman  v.  Stockton 

375 

Cilley  V.  Bartlctt 

176 

Cincinnati  11.  Boal 

279 

City 

656 

xxvin 


INDEX   TO    CASES   CITED. 


Cityu.  Price 

126 

Coe  V.  Peacock 

71 

,  105 

Claggett  V.  Richards 

120 

128 

Cofer  V.  Eckerson 

229 

Clapp  V.  Cedar 

287 

Coffin  V.  Field 

18 

V.  Guild 

123 

V.  Gephart 

68 

V.  Hudson 

705 

V.  Reynolds 

234 

V.  Sheppard 

i 

3,  12 

Cogan  V.  Stortenburgh 

53 

V.  Tiionias 

642 

666 

Coggswell  V.  Baldwin 

318 

Clardy  v.  Callicoate 

427 

Colt  V.  Waples 

' 

7,  96 

Clark  V.  Adair 

7,  25 

117 

Cole  V.  Varner 

450 

V.  Boyreau 

218 

Colegrove  v.  N.  Y. 

270 

V.  Chamberlain 

545 

Collamer  v.  Page 

13 

116 

V.  Clark 

196 

Collard  v.  Southeastern 

660 

V.  Connecticut,  &c. 

123 

Collins  V.  Albany                633 

,704 

,705 

V.  Crego 

200 

201 

V.  Bilderback 

274 

V.  Fensky 

255 

V.  Cave 

238 

V.  Foxcroft 

538 

V.  Dorchester 

442 

474 

V.  Hallock 

646 

V.  Evans 

28,  32 

V.  Heck 

28,  96,  97 

V.  Hough 

126 

V.  Houghton 

462 

529 

V.  Robertson 

152 

V.  Kirwan 

600 

Colman  v.  Clements 

198 

,  207 

V.  Lewis 

92 

Colton  V.  Beardsley 

531 

V.  Lvman 

392 

V.  Mott 

61 

V.  M'Clure 

173 

Colvit  V.  Cloud 

691 

V.  Meigs 

255 

Comer  v.  Pendleton 

470 

V.  Miller 

638 

Comerhoven  v.  Brooklyn 

175 

V.  Nevill 

12 

Commerce 

662 

V.  Norton 

125 

Commercial  v.  Jones 

591 

V.  Pinney 

689 

673 

V.  Rochester 

234 

V.  Pratt 

209 

V.  Wilkins 

638 

V.  Reyburn 

11 

Commissioners  v.  Butt 

648 

V.  Roe-kland 

425 

Commonwealth  v.  Bradley 

639 

V.  Skinner 

42,  47 

V.  Cooley 

412 

V.  Trindle 

146 

V.  Kennard 

42 

V.  Willett 

413 

V.  Lightfoot 

645 

Clark's  v.  Hannibal 

318 

V.  Pope 

411 

Clarke  v.  Bell 

119 

V.  Roxbury 

176 

181 

Clary  v.  Rolland 

126 

V.  Thompson 

236 

Clay  V.  Brigham 

353 

Conard  v.  Pacific 

551 

Clegg  V.  Fields 

147 

Concanen  v.  Lethbridge 

639 

Clement 

422 

Coney  v.  Cuinmiiigs 

144 

Clement  v.  Brown 

690, 

623 

Congar  v.  Galena 

262 

V.  Kimball 

408, 

432 

Conklin  v.  Bishop 

266 

V.  Wright 

11 

Corghanoou  v.  Bloodgood 

154 

Clemson  v.  Bank 

651 

Conlin  v.  San  Francisco 

380 

Clerk  V.  Adair 

115 

Connelly  v.  Walker 

534, 

639 

V.  Udall 

705 

Conner  v.  Carpenter 

490 

Cleveland  v.  Ball 

415, 

416 

V.  Comstock             90, 

110, 

113 

V.  Barrows 

294 

V.  Drake 

553 

Clifton  V.  Lilley 

403 

Connor  v.  Nichols 

208 

Clinton  v.  Wales 

229 

V.  Peugh 

141 

Clough  V.  Shepherd 

237 

V.  Whitmore 

161 

Clute  V.  Voris 

160, 

171 

Conolly  V.  Riley 

403 

Coan  V.  Osgood 

308 

Conroe  v.  Conroe 

517, 

518 

Coats  V.  Darley 

508 

Cook  V.  Bank 

119 

Cobb  V.  Dows 

283 

V.  Ellis 

603 

Cochran  v.  AVhitesides 

181 

V.  Haggerty 

284 

Cocker  v.  Crompton 

316 

V.  Hill 

'705 

Cockley  v.  Pagrave 

12 

V.  Loomis 

591 

Codnian  v.  Evans 

326 

Cooke  V.  Cooke 

463 

INDEX  TO   CASES   CITED. 


XXIX 


Coombs  V.  Gorrlon 

45 

Coon  V.  Cou<j;(h'n 

82 

Coojjur  V.  Bakeiuan 

83 

V.  Benson 

232 

V.  Brown 

122 

V.  Miillins 

546 

V.  Newman 

642 

V.  Wolf 

645 

V.  Young 

659 

Coplev  V.  Rose 

304 

Coppell  V.  Hall 

274 

Corbitt  V.  Heisey 

84 

Corkhill  V.  Landers 

208 

Cornelius  v.  Ivins 

143 

Comes  V.  Harris 

327 

Corning  v.  Corning 

321,  617 

V.  Troy 

172 

Corson  v.  Mulvany 

153,  155 

Cortelyou  v.  Lansing 

577,  672 

Corwiu  V.  Corwin 

233 

V.  Walton 

603 

Cory  V.  Bond 

358 

V.  Silcox 

555 

Cossey  V,  Digs^ons 

22 

Costigan  v.  Mohawk 

654 

Cotter  V.  Doty 

87 

Cotton  V.  Reed 

562 

Coucy  V.  Cummings 

144 

Coughanoor  v.  Bloodgood 

154 

Coursey  v.  Wright 

42 

Courtice  v.  Collet 

316 

Coverdale  v.  Fowler 

376 

Coverlee  v.  Warner 

82 

Covington  v.  Powell 

253 

Cowdin  V.  Stanton 

125 

Cowenhoven  v.  Brooklyn 

362 

Cowles  V.  Carter 

208 

Cox  V.  Brackett 

240 

V.  Grace 

18 

V.  Gray 

208 

V.  Henry 

154 

V.  King 

506 

V.  Marrow 

28,  59 

V.  Shropshire 

263 

V.  Vanderkleed 

616 

V.  Westchester 

479 

Cracknell  v.  Davy 

665 

Craft  V.  Yearney 

226 

Crafler  v.  Metropolitan 

413 

Craig  V.  Adair 

395 

V.  Grant 

89 

V.  Todd 

676 

Grain  v.  Petrie 

686 

Cram  v.  Bailey 

644 

Cramer  v.  Allen 

648 

Crampton  v.  Walker 

282 

Crane  v.  Crane 

150 

V.  Hard  man 

557 

Craton  v.  Wright 

222 

Crawford  v.  Wright 
Creigh  v.  Henson 
Creighton  v.  Proctor 
Creshaw  v.  Moore 
Cresson  v.  Stout 
Crewe  v.  Crewe 
Criner  v.  Pike 
Criswell  v.  Cleugh 
Crites  v.  Littleton 
Crittenden  v.  Lingle 
Croan  v.  Joyce 
Crocker  v.  Mann 
Croft  V.  Lumley 
Crogate's 

Cromelien  v.  Brink 
Crominett  v.  Pearson 
Cromwell  v.  Owings 
Crookshank  v.  Kellogg 
Cross  V.  Sa(!kett 
Crouch  V.  London 
Crow  V.  State 
Cruger  v.  M'Claughry 
Crumb  V.  Oaks 
Cudlip  V.  Rundle 
Cullum  V.  Bevans 
Cumberland  v.  Tilghman 
Cummen  v.  Smith 
Cummings  v.  Gann 
V.  M'Gill 
Cummington  v.  Dwyer 
Cunningham  v.  Dean 

V.  Lyness 
Curd  V.  Wunder 
Cure  V.  Wilson 
Curl  V.  Lowell 
Currier  v.  Boston 
V.  Ford 
V.  Gale 
Curry  v.  Cabliss 

V.  Raymond 
Curtice  v.  Tompson 
Curtis  V.  Avon 

V.  Chicago 
V.  Francis 
V.  Gay 
V.  Herrick 
V.  Jones 
V.  Moore 
V.  Rochester 
Cushman  v.  Churchill 
Custard  v.  Burdett 
Cutlibert  v.  Appleton 
Cutter  V.  Waddingham 
Cythe  V.  La  Fontain 

D. 

Dadinun  r.  Lamson 


25 

185 
160,  211 
319 
10 
541 
562 
23 
119 
48,  55,  117 
187 
12 
188 
323 
10 
651 
40 
343 
293 
389 
565,  680 
194 
590 
497 
6,  83 
27 
514 
102 
3 
503 
145 
276 
28 
74 
812 
426 
45 
188,  396 
24 
184 
249 
440 
426,  478 
160,  218 
221 
218 
72 
283,  475 
680 
86 
609 
385 
185,  219 
166 


160 
640 


XXX 


INDEX   TO    CASES   CITED. 


Da<jgett  V.  Robbins 
D'Aguilar  v.  D'Aguilar 
Dailey  v.  (^rimos 
Daily  v.  New  York 
Dalo  V.  Faivre 
Dallam  v.  Fitter 
Dalton  V.  Dalton 

V.  South  Eastern 
Dame  v.  Dame 
Dainrou  v.  Roach 
Danl)y  /•.  Harrison 
Daiit'orth  V.  Pratt 
Dangi'rlii'ld  v.  Fauver 
Daniel  V.  Le  Fevre 
Daniels  v.  Potter 
Daniells  v.  Patterson 
Dark  v.  Johnston 
D' Arras  ik  Keyser 
Darst  V.  Rush 
Dart  V.  Hercules 

V.  Horn 
Davenport  v.  Burke 

>        V.  Harris 
Davey  v.  Field 
Davidson  v.  Gunsolly 

V.  Nichols 
Davies  v.  Davies 
Davis  V.  Caswell 

V.  Charles 

V.  Davis 

V.  Elliott 

V.  Freeland 

V.  Harding 

V.  Hill 

V.  Jackson 

V.  Jones 

V.  Judge 

V.  Marshall 

V.  Mason 

V.  Morford 

V.  New  York 

V.  North  Western 

V.  Perley 

V.  Sherman 

V.  Tyler 
Davison  v.  Gert 
Dawson  v.  Calloway 
V.  Mills 
V.  Wetherbee 
Day  V.  Berkshire 
V.  Cochran 
V.  Woodworth 
Dayton  v.  Fry 

V.  Pease 
Dean  v.  Ball 

V.  Blackwell 

V.  Comstock 

V.  Dazey 

V.  Vaccaro 


6,  14 

641 
675 

445,  564 
170 
668 
686 
685 
4 

671,  572 
602 
649 
545 
181 
456 
126 
182 
152 
364 
207 
75 
77,  79 
494 
459 
71 
243 
282 
272 
485 
189 
424 
167 
130 
384 

290,  299 
215 
203 
369 
308 
651 
656 

609,  659 

183 

469 

23 

146 

412 

459 

30,  112 

703 

173 

600,  629,  680 

50,  84 

586 

22,  120 

434 

153,  183 
218 
656 


Dearborn  v.  Kelley  113 

Dearing  v.  Ford  99 

Dearmon  v.  Blackburn  14 

Dearmond  v.  Roe  142 

De  Benedctti  v.  Mauchin  457 

Decker  v.  Anderson  119 

V.  Judson  121 

De  Costa  v.  Massachusetts  628 

Deering  v.  Ford           *  91 

De  Haven  v.  LandcU  145 

Dehn  v.  Heekman  672 

Deitzler  v.  Mishler  149 

Delamere  v.  Queen  364 

Delano  v.  Curtis  560 

Delaney  v.  Holcomb  91 

Delaware  v.  Barnes  691 

Demarest  v.  Terhune  402 

De  Moss  V.  Haycock  611 

De  Mott  V.  Hagerman  10 

Dempsey  v.  Paige  612 

Den  V.  Lloyd  183 

V.  Lunsford  219 
Denison  v.  Hyde                         694,  600 

V.  League  242 

V.  Raymond  74 

Dennie  v.  Middlesex  648 

Dennis  v.  Kelso  141 

V.  Snell  373 

Dennison  v.  Benner  503 

Dennistown  v.  Draper  78 

V.  Merchants'  233 

Denny  v.  Lincoln  639 

V.  Middlesex  648 

V.  Reynolds  132 
Depuy  V.  Williams     143,  144,  17D,  203 

Derby  v.  Gallup  679 

V.  Jacques  143 

De  Reguine  v.  Lewis  120 

Derrickson  v.  White  182 

Deshler  v.  Dodge  84 

Desmond  v.  Stone  158 
Detroit  v.  Van  Steinburg         411,  444, 

580 

Devaughn  v.  Heath  601 

Devendorf  K.  Beardsley  298 

Devries  v.  Phillips  454 

Dewey  v.  Hoag  150 

De  Witt  V.  Morris  76 

De  Wolf  V.  Harris  69 

Dews  V.  Ryley  373 

Dexter  v.  Paugh  643 

Diana,  The  697 

Dil)ble  V.  Morris  600 

Dickey  v.  Andros  354 

V.  McDonnell  616 

Dickensheets  v.  Kaufman  255 

Dickenson  v.  Barber  416 

V.  Breeden  162 

Dickerson  v.  Crisman  469 


INDEX   TO    CASES   CITED. 


XXXI 


Dickins  i\  New  York 
Dickinson  v.  Boyle 
V.  Lowell 
V.  Maynard 
V.  Worcester 
Dickson  V.  Mathers 
Dietus  V.  Fuss 
Dikfinan  v.  Taylor 
Dill  V.  Rather 
Dillaye  v.  Wilson 
Dilley  d.  Sherman 
Dilliiiirham  v.  Smith 
Dillon  V.  Douj^herty 

V.  \Vviis.ht 
Dilworth  V.  Arivelvey 
Diniick  V.  Deringer 
Dininny  v.  Fay 
Dixon  V.  Hancock 
V.  Smith 
V.  Thaclier 
Doane  V.  Garretson 
Dobson  V.  IJlackmore 
Dodd  V.  MCraw 
Dodge  V.  Chandler 

V.  Walley 
Dodworth  n.  Jones 
Doe  V.  Cunningham 
V.  Howell 
V.  Jumell 
V.  Lewis 
V.  Roe 
V.  Swails 
Dolby  V.  Miller 
Dole  V.  Er.skine 

V.  Kennedy 
Donaldson  v.  Johnson 

V.  Mississippi 
Donnell  v.  Jones 
Donnelly  i'.  Harris 
Donohue  u.  Dyer 
Doolittle  I'.  Tice 
Dore  V.  Hight 
Dorian  v.  East 
Dorman  v.  Ames 
V.  Kane 
Dorsett  v.  Frith 
Dorsey  v.  Manlove 
Dotliage  V.  Stuart 
Doty  V.  Moore 
Dougherty  v.  Dorsey 

V.  Douglierty 
V.  Matthews 
Douglas  V.  Mitfhell 
Douglass  i\  Kraft 

V.  Stephens 
Dove  V.  Smith 
Dow  V.  Gould 
Downer  v.  Flint 
V.  Smith 


687 

672 

100 

62-t 

355 

3,  85 

3;]6 

1«4 

244 

196,  1!)8 

144 

82,  101 

188 

2,  49 

lie 

202 

647 

33 

513,621 

87 

424 

664 

53 

51,  707 

183 

27 

122 

182 

168 

189 

165 

490 

184 

507 

81 

78 

690 

359 

609 

390 

175 

101 

582 

475,  576 
406 
670 
599 

220,  221 
461 
700 
288 
242 

458,  476 

650,  590 
585 
306 
275 
271 
151,  160,  165 


Downer  v.  Woodbury  244 

Dows  V.  Rush  98 

Doyle  V.  Jessup  542 

Duzier  v.  Jerman  679 
Drake  v.  Mooney                        404,  535 

V.  Sykes  632,  537 

V.  Thayer  255 

Draper  c.  Richards  275 

Dresser  v.  Waterston  684 

Drew  V.  Sixth  683 

V.  Spaulding  337 

Drummond  r.  Hopper  3,  4 

Duane  v.  Hilzhenn  99 

Duberley  v.  Gunning  706 

Dublin,  City  of  656 

Duliois  V.  Glaub  672 

Duffield  V.  Dt'lancey  391 

Duffy  V.  Murrill  7 
Duke  V.  Germaine                       542,  694 

I'.  Vivian  302 

Dumont  v.  Dufore  437 

Dunaway  v.  School  215 

Duncan  v.  Watson  397 

Dunham  v.  Wyckoff  27 

Dunkin  v.  M'Kee  52 

Dunn  V.  Large  597 

V.  Starkweather  218 

Durbrow  v.  McDonald  476 

Durrell  v.  Carver  703 

Dutro  V.  Wilson  664 
D wight  V.  County                       414,  415 

V.  Enos  115 

Dyer  v.  Pacific  383 

V.  Toothaker  161 

Dyke  v.  Aldridge  638 

Dyson  v.  Bradshaw  147 


E. 


Eames  v.  Morgan  280 

Earle  v.  Sawver  631 

Early  v.  Friend  199 

V.  Smith  355 

East  V.  Evans  8 

V.  Hottenstine  572 

Easter  v.  Allen  505 

Easterbrook  v.  Erie  630 

Eastman  v.  Bennett  634 

V.  Fletcher  167 

V.  Hills  19 

V.  Lamprey  170 

V.  St.  Anthony  272 

Eaton  V.  Caldwell  103 

V.  Giles  144 

V.  Jacobs  175 

V.  Melius  4s6 

V.  Monroe  36 


xxxn 


INDEX   TO    CASES   CITED. 


Eaton  V.  0</wt 
e.  Smith 
V.  S(juthby 
Eddy  I'.  Davis 
Edfi-liii  V.  Jiul<j;e 
Ed^e  V.  ruinbrrton 
EdjrertoM  v.  Wolf 
Edmond.son  v.  Nnttall 
Edmuiuls  V.  (iriilia 
V.  Leavitt 
Edwards  v.  Beach 
V.  Bcebe 
V.  M'Curdy 
V.  State 
Egglestoii  V.  Mundy 
Eisenlolir  v.  Svvaiu 
Ela  V.  Pennock 
Elara  V.  Badger 
Elder  v.  Bogardus 
V.  Hilzheiin 
Eldred  v.  Bennett 
Eldridge  v.  Long  Island 

V.  Preble 
Elliott  V.  Bovlcs 

V.  Nevvbold 
V.  Powell 
V.  Steamboat 
V.  Sutor 
Ellis  V.  Culver 
V.  Dempsey 
V.  Jeans  196,  197, 

V.  Murray 
Elliss  V.  Elliss 
Ellsworth  V.  Hen  shall 

V.  Potter 
Elsam  V.  Fawcett 
Elton  V.  Markham 
Elwell  0.  C'rowther 
El  wis  V.  Lonibe 
El  wood  V.  Lannon's 
Ely  V.  Ehlie 
Embler  v.  Myers 
Emblin  v.  Myers 
Emi-ric  V.  Peiiniman 
Einerick  v.  Kohler 

V.  Sloan 
Emerson  v.  CoUamore 

V.  Hogg 

V.  Lowell 
Emer)'  v.  Weltster 
V.  Whitwell 
Emmens  v.  EMerton 
Emuious  V.  Dowe 

V.  Westtield 
Emory  v.  Collings 
Em[)ire 

Eni;li.-h  v.  Ch;rry 
Enright  v.  San  Francisco 


459 

Ensley  v.  Patterson 

236 

149 

Ertbrd  v.  Corsalus 

445 

9 

Erp  V.  Erp 

393 

9 

Ervvin  v.  Myers 

156,  169 

2S2 

Esson  V.  Tarbell 

4,  6,  <i9 

49G 

Esty  i'.  Love 

44,  62 

457 

Etchberry  v.  Leveille 

598 

690 

Etters  V.  Wilson 

538 

162 

Etz  V.  Daily 

163 

18 

Evans  v.  Bowlin 

651 

600 

V.  Brander 

1,3 

582 

V.  Corley 

179 

84,  98 

V.  Greene 

193 

234,  246 

V.  Patterson 

224 

5,6 

V.  Robbins 

166 

627 

V.  Tibbins 

350,  351 

152 

Evansville  v.  Cochran 

415 

347,  351 

V.  Dexter 

239 

332 

V.  Fitzpatrick 

416 

237 

V.  Stringer 

416 

130 

Eveleth  v.  Blossom 

38 

331 

Ewbank  v.  Nutting 

98 

211 

Ewer  V.  Lowell 

176 

516 

Ewing  V.  Gray 

463 

196 

V.  Van  Arsdall 

23 

12 

Eyre  v.  Scovell 

338 

332 

225 

59 
456 

F. 

198,  211, 

218 

Fabrigas  v.  Mostj-n 

320 

213 

Faget  V.  Brayton 

77 

196 

Fail  V.  M'Arthur 

451 

76 

Fairbairn  v.  Means 

222 

598 

Fairbanks  v.  Bloomfield 

337 

541 

Fairhault  v.  Hulett 

256 

338 

Faircliild  v.  Chaustelleux 

64 

368 

Fairfield  v.  Baldwin 

646 

310 

Fairman  v.  Beal 

179 

188 

Falk  V.  Fletcher 

590 

27,  67,  81 

Fallon  V.  Manning 

103 

605 

Fankboner  v.  Fankboner 

275,  286 

546,  627 

Faribault  v.  Hulett 

237 

148 

Faris  v.  Lewis 

612 

180 

Farley  v.  Vanwickle 

391 

56 

Farm^^rs'  v.  Commercial 

115 

166 

Farnham  v.  Moore 

131 

408 

Farnsworth  v.  Agnew 

229 

482 

Far  well  v.  Fox 

75 

491 

Fash  V.  Blake 

161 

472 

Fay  V.  Davidson 

564 

256 

Federal  v.  Mariner 

495 

27 

Feize  V.  Thompson 

555 

561 

Feim  V.  Holme 

158 

487,  496 

Fenwick  v.  Bell 

422 

394 

V.  Gill 

148,  221 

707 

Ferguson  v.  Carter 

205 

413 

V.  Gilbert 

402 

INDEX   TO    CASES   CITED. 


XXXlll 


Ferguson  v.  Thomas 
Ferrell  v.  IIunipLrey 
FettiT  V.  Beale 
Ficken  v.  Jones 
FickiT  V.  Jones 
Fiedler  v.  Darvin 
Field  V.  Jacobs 
Final  v.  Backus 
Finch  V.  Shaw 
Fink  V.  Garman 
Finley  v.  Quirk 
Finn  v.  Wharf 
Finnegan  v.  Carrahe 
Firehout  v.  Crain 
Firestone  v.  Mishler 
Fish  V.  Dodge 

V.  Redington 

V.  Skut 
Fishell  V.  Winans 
Fisher  v.  Bridges 
V.  Deibert's 
V.  Meek 
Fishwick  V.  Sewell 
Fisk  V.  Fisk 

V.  Kicks 
Fitch  V.  Brockman 
Fitzgerald  v.  Addams 
V.  Boulatt 
V.  Williams 
Fitzhugh  V.  Wiman 
Fitzsimmons  v.  Inglis 
Flack  V.  Neill 
Flagg  V.  Bean 
V.  Meath 
V.  Tyler 
Flanders  v.  Stewartstown 
Flanigen  v.  Philadelphia 
Fleemau  v.  Ilaren 
Fleet  V.  Lockwood 
Fleming  v.  Smith 
Fletcher  v.  By  lands 
Flint  V.  Flint 

V.  Norwich 
Flynn  v.  Bailey 
Folger  V.  Fields 

V.  Hinckley 
Fonaren  v.  Durfce 
Fondren  v.  Durlee 
Fooks  V.  Waples 
Foote  V.  Nichols 
Forbes  v.  ^loore 
Ford  V.  Ager 

V.  Atlantic 

V.  Flint 

V.  Ford 

r.  Haskell 

r.  Ilolton 

V.  Barker 

V.  Sampson 


68 

88 
616 
430 
400 
161 

20 
593 
226 
691 
275 
397 
198 

76 
2,  44 
702 
279 
403 
559 
323 
490 
444 
591 
211,214 
248 
470 
439 
706 
174 
115 
578 
614 
203 
708 
131,  132 
386 
206 
7 
73,  111,  112 
441 
628 
415,  428 
457 
283 
700 

19 
215 
447 
501 
599,  616 
252 
161 
653 

22 

82 
447 
220 
478 
210 


Ford  V.  Simmons 
V.  Williams 
Fordham  v.  Akcrs 
Forshee  v.  Abrams 
Forsyth  v.  Diikson 

V.  Wells 
Fort  V.  Thrown 
Forty  V.  Imber 
Forward  v.  !Marslf 
Fosgate  v.  Herk 
Foster  v.  Chamberlain 
V.  Durant 
V.  Kennedy's 
V.  Pettibone 
Fountain  v.  Chamberlain 
Foust  V.  Trice 
Fowler  v.  County 

V.  Davenport 
V.  Stonum 
V.  AVestervelt 
V.  Whitemau 
Fowlkes  V.  Webber 
Fox  V.  Brissac 
V.  Pricker 
Frank  v.  Avery 

V.  New  Orleans 
Franklin  v.  Dorland 
V.  Greene 
V.  Hall 
V.  Bailway 
V.  Southeastern 
Frantz  v.  Lenhart 
Fraser  v.  Tupper 
V.  Wcller 
Frazier  v.  Pennsylvania 
Freeland  v.  Muscatine 
Freeman  v.  Birch 

V.  Harwood 
V.  Howe 
Frei  v.  Vogel 
Freidenheit  v.  Edmundson 

French  v.  White 
V.  Willet 
Freshwater  v.  Nichols 
Frey  v.  Leeper 
Friedman  v.  Railroad 
Frink  v.  Potter 
Frisbee  v.  Langworth 

V.  Lindley 
Fritz  V.  Fritz 
Fromberger  v.  Greiner 
Frost  V.  Dougal 

V.  Mott 
Fry  V.  Bennett 


Frye  v-  Gragg 
Fryer  v.  Fryer 
FuUam  v.  Stearns 


356,  513, 
520,  523 


474 

589 

14 

520,  521 
641 
590 
420 
22 
374 

194,  196 
565 
166 
611 
54 
328 

202,  216 
415 
658 
37 
265 
147 
703 
666 
26 
248 
632 

149,  162 
612 
157 
685 
686 
391 
417 
205 
434 
637 
262 
674 
53 

103,  118 

547,  598, 

602 

475 

374 

28 

16 

445 

270 

70 

259 

266,  282 

23 

538 

47 

514,  519, 

,  598,  620 

176 

75 

550 


XXXIV 


INDEX   TO    CASES   CITED. 


Fuller  V.  Acker 

64 

V.  Bounceville 

306 

V.  Howker 

116 

V.  Dean 

617 

Fultz  V.  W  yoofif 

241, 

575 

Funk  V.  Kiiuaid 

213 

Fury  V.  Stone 

703 

G. 

Gaffield  V.  Avery 

74 

Gage  V.  Smith 

174 

Gahagan  v.  Boston 

430, 

434 

Gaines  v.  Ntr'w  Orleans 

144, 

146 

j;.  Tibbs 

110, 

112 

Galer.  Tnoliinme 

363 

Galena  v.  Rae 

656 

V.  Sumner 

238 

Gallagher  v.  Bishop 

42,  52, 

111 

V.  Williamson 

463 

Gallarati  v.  Orser 

101 

Galusha  v.  Butterfield 

81 

Galvin  v.  Bacon 

90 

Gaudy  V.  Humphries 

513, 

523 

Gantt  V.  Cowan 

146 

Garber  v.  Morrison 

703 

Gardiner  v.  Jadis 

541 

V.  Pollard 

272 

Gardner  v.  Campbell 

41 

V.  Dutch 

60 

V.  Gooch 

168,  175, 

302 

V.  Humphrey 

13,  77 

V.  Lane 

66,  76 

Garner  v.  Anderson 

89 

V.  Bridges 

466 

V.  Jones 

218 

V.  ^lanhattan 

206 

Garret  v.  Dickerson 

511 

Garrett  v.  Lyle 

144 

V.  Wood 

14 

Gartside  v.  Nixon 

28 

Gas  V.  Colliday 

673 

Gassett  i'.  Sanborn 

374 

Gates  V.  (iates 

66 

V.  Kieflf 

319 

V.  Lownsbury 

4 

V.  IMowry 

467 

V.  Reynolds 

611 

Gatling  V.  Newell 

427 

486 

Gaul  V    Fleming 

397 

Gaulden  v.  Shehee 

671 

Gault  V.  Cowan 

165 

V.  Humes 

275 

Gaunce  v.  Backhouse 

457 

Gay?;.  Kitchiner 

323 

V.  Matthews 

48,  78 

V.  Morgan 

119 

V.  Raines 

703 

V.  Winter 

248 

,  595 

Gee  V.  L.  &  Y. 

Genay  v.  Norris 
Gent  V.  Lynch 
Gentry  v.  Borgis 
George  v.  Lemon 

V.  Nelson 

V.  Thomas 

V.  Willis 
Gerber  v.  Monie 
Gerhart  v.  Bates 
Gcrke  v,  California 
German  v.  Sendmeyer 
Gerrish  v.  Gary 

V.  Johnson 
Gibbins  v.  Buckland 
Gibbon  V.  Coggon 
Gil»bons  v.  Gentry 
Gibbs  V.  Bull 
Gibney  v.  Marchay 
Gibson  v.  ^lanly 

V.  Mozier 

V.  S.  E.  Railway 

V.  Waterhouse 
Gihon  V.  Levy 
Gilbert  v.  Burtenshaw 
Gilding  V.  Eyre 
Gile  V.  Libby 
Gill  V.  Gill 

V.  Strozier 
Gillett  V.  Western 
Gillham  v.  Kerome 

V.  Love 
Gillies  V.  Woflford 
Gillis  V.  Black 
Gillon  V.  Wilson 
Oilman  v.  Lowell 

V.  Riopelle 
Gilmore  v.  Cook 
Gimon  V.  Baldwin 
Ginaca  v.  Atwood 
Ginger  v.  Ginger 
Girard  v.  New  Orleans 
Gist  V.  Cole 
Glann  v.  Younglove 
Glascock  V.  Nave 
Glassford  v.  Hackett 
Glenn  v.  Harrison 
Gk'zen  v.  Rood 
Gliddon  V.  M'Kinstry 
Gloninger  v.  Hazard 
Gloucester  v.  Gaffiney 
Glover  v.  Chase 
Goetz  V.  Ambs 
Goggans  v.  Monroe 
Golderman  v.  Stearns 
Goldey  v.  Pennsylvania 
Goldthwait  v.  East 
Goller  V.  Felt 
Gooch  V.  Geery 


587 
607 
268 
77,  83,  85 
356 
277 
449 
397 
113 
292 
443 
674 
188 
251 
142 
538 
273 
109 
437,  468 
140 

82 
634 
892 
254 
705 
342 
387 
153 
463 
583 

42 
617 
98,  106 
235 
321 
623 
214 
556 
444 
127 
641 
175 
257 
101 
471 
120 
336 
650 
330 
148 
157 

13 
275,  602,  626 
429 
522 
690 
385 
561 
320 


INDEX   TO    CASES    CITED. 


xxxy 


Good  V.  ISIylin 
Goodall  V.  Tiiiirman 
Goodluie  V.  I'aker 
Goodrich  v.  Jiidevinc 
•       V.  Reynolds 
Goodrum  v.  Root 
Goodsell  V.  llariCord 
Goodtitle  V.  Alker 

V.  Roe 
Gordon  v.  Jenney 
V.  Jont'S 
V.  Sizer 
V.  Williamson 
Gorman  r.  Sutton 
Gosling  r.  Morgan 
Goss  V.  Austin 
Gosslin  V.  Ri'ddin 
GotU'il)  t'.  Li'ach 
Goulienant  v.  Brisbane 
Gould  V.  Barnard 
V,  (lap 
V.  Kelley 
Gourley  v.  Kinley 
Gove  V.  Ciiadwick 
Governor  v.  Lagow 
GVahani  v.  IIolliiigtT 
V.  INkCreary 
V.  Roark 
V.  Roden 
Grand,  &c.  v.  Knox 
Grande  v.  For 
Grandy  v.  MTherson 
Granite 

Granger  v.  Ilsley 
Grant  v.  Allison 

V.  Brooklyn 
Gratz  V.  Beates 
Graves  v.  Amoskeag 

17.  .Graves 
V.  Moses 
V.  Severens 
V.  Spier 
Gray  v   Coan 

V.  Crocheron 
V.  Crojjper 
V.  Earie 
V.  Givens 
V.  M'Laughlin 
t'.  Nations 
V.  Parker 
V.  Ravne 
J.  Portland 
V.  Waterman 
Great  v.  Crouch 
V.  Helm 
V.  Rcdmayne 
V.  VVorster 
Greeley  v.  Thomas 


6S2 

70;") 

174,  223,  230 

308 

28G,  288 

G41 

G90 

181 

142 

37,  r.2 

607 

182,  198,  502 

129 

620 

351 

245 

24 

296 

280 

74 

263 

694 

189 

617 

276 

602 

646 

301 

698 

656 

141 

450 

697 

278 

18(3 

486,  574 

157,  221 

157,  158,  207, 

212 

428 

413 

595 

284 

255 

654 

294 

66 

195 

447 

15 

81 

294 

673 

563,  572 

280 

240 

658,  6  CO 

308,  313,  314 

211,  224 


Green  v.  Baker  136 

V.  P.oody  383 

V.  Dingley  83 

V.  (Jarcia  679 

V.  Hall  644 

V.  Holden  41 

V.  Hudson  473,  6s7 

V.  Scarlett  1  16 

Greenfield  v.  Lcavitt  590 

Greening  v.  Wilkinson  674 

(jreenville  v.  Partlow  601 

Greenwade  t;.  Fisher  73 

Greenway  v.  James  274 

Greer  V.  Mezes  197 

V.  Powell  590 

Gregg  V.  Van  Plml  156 

Gregory  v.  Frothingham  463,  468 

V.  M'Farland  255 

V.  Slowman  706 

V.  Walker  410 

Grennell  v.  Walden  246 

Grier  v.  Sampson  481 

V.  Ward  686 

Griffin  v.  Brown  647,  648 

V.  Jenkins  306 

V.  Montgomery  4."i4 

V.  ShcHicld  146 

V.  Smith  42 

V.  Witherspoon  703 

Griffith  V.  Follett  266 

Griggs  V.  St.  Paul  234 

V.  Vickroy  348 

Grigsby  v.  Ford  551 

Grill  V.  General  528 

Grimes  v.  Booth  398 

V.  Hagood  332 

Grimmell  i'.  ^Varner  394 

Grooms  v.  Rust  466 

Grout  V.  Knapp  308 

Groves  v.  Marks  149 

Grubb  V.  ]\Iahoning  246 

Guard  V.  Risk  698 

GuUett  V.  Laml)erton  10 

Gunter  v.  Cleyton  234 

V.  Dale  638 

Guthrie  v.  Kahle  226 

Guy  V.  Barnes  207 

V.  Washburn  234 

Gwylli  V.  Scholey  639 

Gwynn  v.  Setzer  490 


H. 


Hackett  v.  Bonnell 
V.  King 

Hadley  v.  Carter 


14,  15, 115 

478,  489,  493, 

509 

451 


XXXVl 


INDEX   TO    CASES    CITED. 


Hadlock  v.  Hadlock 

223 

Hanson  v.  Millet 

^55 

Hagan  v.  YiuvW 

14 

Harbison  v.  Shook 

354,  358 

,  622 

V.  Hendry 

355 

,  511 

Harbold  v.  Kuster 

■- 

489 

V.  Providence 

608 

Ilardage  v.  Coilman 

404 

Hajjey  v.  Detweiler 

223 

Hardee  ik  Langford 

• 

504 

Halm  V.  Doolittle 

259 

,  290 

Hardenburgh  v,  Crary 

508 

V.  Hitter 

275 

Hardie  v.  Young 

1 

V.  Sweazea 

703 

Harding  v.  Carter 

459 

,  675 

Haight  V.  Badgeley 

305 

,306 

Hardwick  v.  Coleman 

524 

V.  Hoyt 

490 

Hardy  v.  Branch 

260 

Hailes  V.  JNIarks 

509 

V.  Johnson 

148 

,  194 

Hale  w.  Clark 

IS 

Harkey  v.  Houston 

202 

V.  Silloway 

469 

Harlan  v.  Harlan 

11 

V.  Taylor 

428 

V.  Haynie 

307 

V.  Wiggins 

148 

Harlow  v.  Fitchburg 

499 

Hall  V.  Browne 

220 

V.  Rogers 

145 

V.  Davis 

508 

Harman  v.  Mockett 

277 

V.  Dodge 

195- 

Harper  v.  Baker 

i,  81 

V.  GiJltiiore 

64 

V.  Moffit 

534 

V.  Goodson 

419 

,  474 

Harrell  v.  Durrance 

706 

V.  Hall 

19 

V.  Hill 

904 

V.  Hinks 

462 

Harriman  v.  Wilkin s 

73 

V.  Kellogg 

161 

Harrington  v.  Lincoln 

441 

V.  Layton 

395 

Harris  v.  Barnard 

487 

588 

V.  Manehester 

473 

V.  Dignum 

499,  508 

509 

V.  Naylor 

477 

V.  JafFrey 

703 

V.  Nees 

350 

V.  Marblehead 

•222 

V.  People 

242 

V.  Miner 

307 

V.  Vanness 

149 

V.  Panama 

419 

657 

V.  White 

69 

V.  Richey 

214 

V.  Wiles 

631 

V.  Smith 

58 

V.  Young 

445 

V.  Stevens 

324 

Hallam  v.  Todhunter 

557 

V.  Vinyard 

193 

Hallett  V.  Byrt 

43 

V.  Whitcomb 

494 

V.  Fowler 

31, 

112 

Harrison  v.  M'Intosh 

84,  87 

V.  Novion 

571 

V.  Pearce 

576 

Halliday  v.  Noble 

342 

V.  Price 

390 

Halsey  v.  ]\Iartin 

194 

V.  Taylor 

199 

Hambleton  v.  Lynch 

45 

Harrod  v.  Hill 

113 

Hamer  v.  Hatheway 

592 

Harry  v.  Constantin 

, 

514 

Hamilton  v.  Sini,^er 

90 

Hart  V.  Brown 

597 

V.  Ward 

555, 

610 

V.  Fitzgerald 

59 

V.  Wentworth 

203 

V.  Henderson 

162 

Hamm  v.  Beaver 

153 

Harter  v.  Crill 

276 

Hammack  v.  White 

393 

Hartley  v.  Ferrell 

167 

Hanmier  v.  Pierce 

436, 

461 

Ilartman  v.  Keystone 

233 

Hammond  v.  Inloes 

145, 

176 

Hartranft  v.  Hesser 

523 

Hannier  v.  Griffith 

640 

Hartshorn  v.  Williams 

535 

Hanck  v.  Grantham 

389 

Harvey  v.  Sides 

548, 

586 

Hancock  v.  Aiken 

141 

V.  Skipwith 

266, 

284 

Hand  v.  McKinney 

163 

Haskin  v.  Haskin 

558 

Handley  v.  Chambers 

679 

Haslett  V.  Foster 

228 

Han  ford  v.  Obrecht 

98, 

110 

Hass  V.  Gardner 

208 

Hanley  v.  Erskine 

466 

Hassell  v.  Walker 

188 

Hanna  v.  Phillips 

220 

Hastings  v.  Stark 

269 

V.  Renfro 

188 

Hatch  V.  Bartle 

534 

V.  Steinberger 

56 

V.  Bates 

467 

Hanover  v.  Coyle 

573 

V.  D  wight 

668 

Hanson  v.  Armstrong 

19^ 

V.  Hart 

268 

ITatcliett  V.  Gibson 
Haven  v.  Adams 
V.  Boston 
Havens  v.  Hartford  317, 

Havcy  v.  Donnelly 
Haviland  v.  Tuttle 
Hawk  V.  Ridf^way 
Hawke  v.  Banning 
Hawkins  v.  Hudtion 
V.  Rei(;liert 
V.  Weightman 
Hayden  v.  Aliearn 

V.  Anderson 
Hayes  v.  Bernard 
V.  Luccv 
V.  IMonille 
V.  Wells 
Haynes  v.  Crutchfield 
Hays  V.  Askew 
t'.  Barrera 
V.  Berryuian 
V.  Crist 
V.  Riddle 
V.  Rutter 
Hay  ward  v.  Draper 

V.  Dunklee 
Hazen  v.  Boston 
Heald  V.  Cusbnian 

V.  Thing  412, 

Heard  v.  Baird 
Hedgepath  v.  Robinson 
Hedges  V.  Wallace 
Heeney  v.  Heeney 
Heeron  v.  Beckwith 
Hellner  v.  Betz 
V.  Reed 
Heil  V.  Glanding 
Heirn  v.  M'Caughan 
Heirs  v.  Gilliam 
Hell'enstein  v.  Leonard 
Hellings  V.  Commonwealth 
Heninienway  v.  Woods 
Hemmer  v.  Cooper 
Hemmings  v.  Gasson 
Hempstead  v.  Bird 

V.  Johnston 
Henderson  v.  Maid 
V.  Sevey 
V.  State 
Hendricks  v.  Decker 
Hendricksou  v.  Kingsbury 
Hennessy  V.  Farrell 
Hennicker  v.  Kontokook 
Henry  v.  Fine 
Henshaw  v.  Bank 
Herdick  v.  Young 
Herriek  i".  Graves  203, 

Herrington  v.  Stevens 
Herriter  v.  Porter 


EX 

TO    CASES   CITED. 

XXXVU 

556 

Herron  v.  Ilomljack 

702 

219 

222 

V.  Hughes 

266 

222 

Hershler  v.  Reynolds 

119 

318, 

335 

Hess  V.  Buffalo 

271 

433 

Hessing  v.  M'CIosky 

462 

251 

Hewett  V.  Harvey 

233 

604 

Hewitt  V.  Macijuire 

345 

207 

Heyward  v.  Chisolm 

250 

IGO 

Hey  wood  v.  Reed 

430 

202, 

208 

Hibbs  V.  Ross 

528 

405 

llickey  v.  Hinsdale 

3,  42 

389 

Hicks  V.  Britt 

48 

106 

t'.  Coleman 

163.  174,  179 

167 

t'.  Fluit 

29 

3 

V.  Herring 

577 

48 

V.  Resing 

358 

646 

Higginbotham  v.  Rai'waj 

6r,0 

77 

Higgins  V.  Reed 

439,  493 

608 

Hightower  v.  Williams 

146 

180 

llilileburn  v.  Nathans 

82 

618 

Ilildreth  v.  Lowell 

708 

679 

Hiles  V.  M'Farlane 

74 

645 

Hill  V.  Barrett 

232 

95 

V.  Canfield 

592,  593 

293 

V.  Fellows 

108 

536 

V.  Harris 

272 

398 

V.  Hill                  148, 

153,  199,  212 

101 

V.  Hinton 

534 

448 

449 

V.  Kricke 

162 

149 

V.  Loomis 

6(i8 

C04 

V.  Meyers 

216,  219 

432 

V.  Miller 

258 

580 

V.  Morey 

305 

115 

V.  New  Haven 

235,  256 

145 

V.  Olipbant 

163,  165 

116 

V.  Portland 

418,' 479 

549 

V.  Robinson 

27,  76 

527 

602 

V.  Saunders 

198 

201 

V.  Smith 

256 

198 

V.  Stocking 

22,  23,  24,  25 

23 

V.  Sturgeon 

427 

696 

V.  Supervisor 

241 

504 

Hillebrand  v.  Brewer 

547 

351 

485 

Hiliman  i'.  Baumbach 

597 

696 

Hills  V.  Boston 

274 

394 

HiKson  V.  Blain 

25 

658 

Hilton  V.  Duncan 

200 

614 

V.  Woods 

561 

397 

Hines  v.  Allen 

15 

662 

Hi|)p  V.  Forester 

204 

600 

Hirsch  v.  Patterson 

703 

161 

V.  Whitehead 

2 

235 

Hitchcox  V.  Rawson 

203 

91 

Hindle  v.  Bladers 

539 

644 

Hoag  V.  Bremar 

15 

28,  1)2 

Hoagland  v.  Hannilial 

282 

205, 

246 

Iludgkins  v.  Dennett 

35 

553 

Hodges  I'.  WimUiara 

541 

677 

Hodgson  V.  Millward 

COl 

XXXVlll 


INDEX   TO   CASES   CITED. 


Hodsdon  v.  Wilklns 

639 

Hotaling  v.  Hotaling 

183 

i».  Windham 

541 

Hotcbkiss  V.  Asley 

64 

,  67 

Ilocffner  v.  Stratton 

111 

i;.  Ladd 

276 

Hoey  V.  Felton 

580, 

619 

V.  Porter 

516 

Hoffman  v.  Gordon 

241, 

280 

Hough  V.  Waters 

156 

V.  Kemerer 

543 

Hounsell  V.  Smith 

384 

V.  Noble 

110 

Houston  V.  Sneed 

220 

V.  Tuolumne 

330 

Hovey  v.  Chase 

422 

Hogan  V.  Cregan 

695 

V.  Hobson 

144 

Hogg  V.  Zane3villo 

679 

Howard  v.  Peete 

497 

Hoggland  v.  Cathren 

597 

V.  Smith 

440 

Hoggsett  V.  Ellis 

445 

V.  Snelling 

465 

Hohenthal  v.  Watson 

103 

V.  Tiffany 

233 

Hoitt  V.  Holcombe 

289 

Howe  V.  Farrar 

407 

Holbrook  V.  Brenner 

164, 

166 

V.  Freeman 

14 

V.  Nichol 

213 

V.  Handley 

121, 

129 

V.  Pratt 

302 

V.  Mason 

431 

Holden  v.  Rutland 

383 

V.  Peckham 

329 

Hole  V.  Rittenhouse 

179 

V.  Shaw 

58 

Hollenbeek  v.  Rowley 

307, 

471 

V.  Wildes 

204 

Holley  V.  Hawley 

200 

Howell  V.  Howell 

461 

Holliman  v.  Cabanne 

422 

V.  Young 

575 

HoUingshead  v.  Naumair 

175 

Howland  v.  Crocker 

165 

Holly  V.  Boston 

317,319 

433 

V.  Fuller 

80,  55 

V.  Carson 

340 

Hoxie  V.  Finney 

160 

V.  Mix 

700 

V.  Home 

275 

475 

Holman  v.  Murdock 

432 

Hoye  V.  Swan 

179,  181 

183 

Holmark  v.  Molin 

35 

462 

Hoyt  V.  Carter 

177 

Holmes  v.  Carondelet 

228 

V.  Seeley 

245 

V.  Davis 

218 

V.  Smith 

350 

355 

V.  Sawtelle 

463 

Hubble  V.  Vaughn 

161 

V.  Wood 

82 

Huber  v.  Sharck 

53 

Holt  V.  Rees 

161 

Huffu.  Gilbert 

106 

V.  Sargent 

572 

Huggeford  v.  Ford 

128 

Holton  V.  Binns 

59 

Hughes  V.  Holliday 

194 

V.  Muzzy 

349 

358 

V.  Wilkinson 

146 

V.  Parker 

265 

Hulet  V.  Stratton 

241 

Honian  v.  Laboo 

91 

Hull  r.  Vreeland 

350 

Homer  v.  Brown 

143 

Humphrey  v.  London 

302 

V.  Taunton 

349 

V.  Taggart 

134 

Honess  v.  Stubbs 

357 

358 

Humphries  v.  Brogden 

261 

Honeywell  v.  Helm 

288 

V.  Johnson 

600 

Hood  V.  Hood 

174,  396 

466 

V.  Parker 

620 

622 

V.  Maxwell 

318 

Hunt  V.  Bennett     84,  97 

348,  355 

,620 

Hooksett  V.  Amoskeag 

384 

V.  Chambers 

88 

Hootman  v.  Shriver 

648 

V.  Chicago 

572 

Hopewell  v.  Price 

652 

V.  Hunter 

253 

Hopkins  v.  Atlantic 

4,  17 

6;i3 

V.  Lowell 

414,  482 

483 

V.  Hopkins 

84,  87 

V.  M'Farland 

203 

V.  Ladd 

128 

552 

V.  People 

448 

Hopkinson  v.  Shelton 

252 

V.  Plainfield 

446 

447 

Hopple  V.  Higbee 

305 

V.  Roylance 

455 

Hord  V.  Chandler 

285 

V.  Turner 

275 

Home  V.  Memphis 

399 

Hunter  v.  Gibbons 

281 

Horton  v.  McMurtry 

277 

V.  Hudson 

65 

V.  Reynolds 

662 

V.  Stewart 

596,  627 

658 

Hosford  V.  Ballard 

183 

Huntington  v.  Gilmore 

64 

Hoskins  w.  Gentry 

269 

V.  Massey 

505 

612 

Hosley  V.  Brooks 

515,  516 

518 

Huntley  v.  Bacon 

627 

INDEX   TO    CASES   CITED. 


XXXII 


Hurd  V.  Hubbell 

591 

Hurlburt  v.  Green 

663 

Hurley  v.  Manchester 

384 

Hutchinson  v.  Guion 

33,1 

V.  :Methuen 

41 « 

Hutt  V.  Brucknian 

(is 

Hutton  V.  Reed 

2-2i 

Hyall  V.  Adams 

447 

600 

Hyatt  V.  Adams 

54;3 

694 

Hyde  V.  Graham 

280 

313 

V.  Pahner 

409 

V.  Stone 

679 

Hynds  v.  Hays 

441 

I. 

Ibbitson  v.  Brown 
Ice  V.  Lockbridge 
lUingworth  v.  Greenleaf 
Illinois  V.  Copi'land 

V.  Fiimif^an 

V.  ]\rCk'lland 

V.  McKee 

V.  Read 

V.  Simmons 

V.  Sutton 

V.  Taylor 

V.  Williams 
Ilsley  V.  Stubbs 
Incledon  v.  Watson 
Indianapolis  v.  Adkins 
V.  Ballard 
V.  Brucey 
V.  Keely 

V.  Klein 
V.  Ruthford 
V.  Sparr 
V.  Wharton 
V.  Williams 
V.  Wilsey 
Ingalls  r.  Bulkley 
Ingersoll  v.  Emerson 
V.  Sergeant 
V.  Van  Bukkelin 
Ingledew  v.  Northern 

Ingraham  v.  Hammond 

V.  Martin 
Inman  v.  Gower 
V.  Mead 
Innis  «.  Steamboat 
Insole  V.  James 
Irwin  V.  Cook 
Israel  v.  Clark 
Ives  V.  Carter 
Ivey  V.  M'Queen 


460 

36 

548 

380,  498,  528 

585 

381 

381 

329 

241 

447 

498 

393 

14,  40,  42 

601 

383 

283 

381 

240,  329,  379, 

380 

380 

276 

381 

383 

381 

381 

82,  90,  91 

30 

22 

662 

442, 470, 

656 

83 

27,  68 

99 

166 

427 

243 

621 

459 

682 

648 


J. 


Jack  V.  !Martin 

106 

Jackson  v.  Fisher 

664 

V.  Harrington 

366 

V.  Orser 

450 

Jacobs  V.  Hoover 

568 

V.  Shorey 

457 

V.  Whitcomb 

453 

Jaha  V.  Belleg 

553 

James  v.  Biddington 

694 

V.  Duidap 

180 

Jamison  v.  Copper 

289 

Jaiivrin  v.  Scaiiimon 

315 

Jaqiies  v.  Sanderson 

89 

Jarvis  v.  Hamilton 

236,  237 

V.  Manlove 

508 

V.  M'Bride 

245 

Jefcoat  V.  Knotts               201 

548,  601 

Jefferson  v.  Adams 

603 

V.  Chase 

59 

Jeffersonville  v.  Hendricks 

239 

V.  Rogers 

575 

Jeffery  v.  Bastard 

539 

Jemison  v.  Smith 

462 

Jenkins  v.  Long 

286 

V.  Steanka 

115,  249 

Jenney  v.  Jenney 

137 

Jennings  v.  Florence 

342 

Jessup  V.  Loucks 

363 

Jeune  v.  Joslyn 

456 

Jewett  V.  Banning 

438 

V.  Foster 

308 

V.  Locke 

343 

Joannes  v.  Burt 

233,  348 

V.  Fisk 

552 

Jocelyn  v.  Barrett 

13 

Johnson  v.  Adleman 

208 

V.  Bennett 

185 

V.  Boardman 

209 

V.  Brock 

409 

V.  Courts 

574 

V.  FuUerton 

225,  227 

V.  Garlick 

58 

V.  Houston 

151 

V.  Howe 

95 

V.  Hunt 

33 

V.  John 

4 

V.  Lightsey 

451 

V.  Lovett 

665 

V.  Miller 

60 

V.  Neale 

30,  31 

V.  Nevill 

202 

V.  Perry 

577 

V.  Pye 

297 

V.  Rayner 

223 

V.  Richards 

118 

V.  Wing 

18 

Johnston  v.  Crawford 

507 

xl 


INDEX  TO   CASES   CITED. 


Johnston  v.  Oskosh 

234 

Jolly  V.  S'uv^Iq 

571 

Jones  V.  Allen 

546, 

692 

V.  Andover 

241 

V.  Blair 

649 

V.  Collins 

208 

V.  Conway 

588 

V.  Cortes 

610 

V.  Diver 

352 

V.  Fletcher 

895 

V.  Hill 

458 

V.  Hughes 

282 

V.  Jackson 

198 

V.  Jones 

312 

V.  Louderman 

242 

V.  Merrick 

417 

V.  Merrimack 

143 

V.  Morse 

463 

V.  Muisbach 

403 

404 

V.  New  York 

584 

V.  Nunn 

181 

V.  Pereira 

706 

V.  Scoggins 

ISO 

V.  Smith 

296 

V.  Stone 

534 

V.  Thompson 

694 

Jordan  v.  Dennis 

13 

V.  Dobson 

394 

Jose  V.  Mills 

302 

Joslyn  V.  Tracy 

377 

Judah  V.  Trustees 

200 

V.  Vincennes 

259 

Judd  V.  Brentwood 

440 

V.  Fox 

13,  82,  41 

V.  Gibbs 

164 

,  218 

Judson  V.  Adams 

74,89 

,  125 

Justices'  V.  Lee 

61 

K. 

Kafer  v.  Harlow  132,  133 

Kahoon  v.  Wisconsin  551 

Kaley  v.  Shed  567 

Kannady  v.  Lambert  276 

Karney  v.  Paisley  622 

Karthans  v.  Owings  67 

Kavanagh  v.  Phelps  82 

Kay  V.  Glover  204 

Keane  v.  Cannovan  532 

Kearney  v.  Farrell  423,  450 

Keates  v.  Cadogan  240 

Keator  v.  Dimmick  468 

Keeler  v.  Campbell  551 

V.  Salisbury  441 

Keen  v.  Priest  667 

Keener  v.  State  412,  483 

Keeter  v.  Smith  142 

Keite  v.  Boyd  63 


Keith  V.  Bradford  21 

V.  Cheshire  702 

Keller  v.  Auble  ^  200 

V.  Johnson  257 

V.  Miller  13 

Kelley  v.  Dresser  531 

V.  Kelley  468 

V.  Taylor  309 

Kelliher  v.  Miller  627 

Kellogg  V.  Churchill  41 

V.  Forsyth  191 

Kelly  V.  Archer  592 

V.  Medlin  201 

Kendall  v.  May  423 

Kennebec  v.  Boulton  699 

Kennedy  v.  Daniels  150 

V.  Kennedy  102 

V.  North  599 

V.  Reynolds  141 

V.  Strong  590 

V.  Whitwell  670 

V.  Wright  652 

Kenrick  v.  Horder  278 

V.  Kenrick  641 

Kensil  v.  Chambers  22 

Kent's  317 

Kent  V.  Ginter  676 

V.  Lincoln  446,  479 

V.  White  391 

V.  Willey  279 

Kentucky  v.  Dills  605 

Kercheval  v.  Harley  186 

Kerley  v.  Hume  111 

Kerr  v.  Elliott  180 

Kerry  v.  Watkins  542 

Kerschbaugher  v.  Slusser  853 

Keyes  v.  Howe  807 

V.  Prescott  303 

V.  Western  556 

Keyzor  v.  Newcomb  520 

Kidd  V.  Teeple  169 

Kiene  v.  Ruff  353 

Kier  v.  Peterson  590 

Kile  V.  Tubbs  159 

Killey  v.  Wilson  156 

Kimball  v.  Adams  20 

V.  Currier  448 

V.  Lohmas  11 

V.  Thompson  46,  95,  111 

Kimmell  v.  Geeting  456 

Kincheloe  v.  Tracewells  172 

King  V.  Bremond  703 

V.  Davis  289 

V.  Gilson  12 

V.  Ham  671 

V.  Lambden  24 

V.  Orser  38,  43,  55,  570 

V.  Phippard  323 

V.  Potter  221 


INDEX  TO   CASES   CITED. 


xli 


King  r.  Randlett 
v.Steereii'j 
V.  Wliitlcy 
V.  Wilkiiis 
V.  Willi  ley 
V.  Woodbridge 
Kinijsbury  v.  Moses 
Kinnc  v.  New  Haven 
Kinney  v.  Crocker 
V.  liosca 
V.  Osborne 
Kinter  v.  Jenks 
Kirk  V.  Morris 
Kirkland  v.  IIepsel<i;efser 

V.  Thompson 
Kitcliens  v.  Robbins 
Klander  v.  M'Grath 
Klink  V.  Cohen 
Knapp  V.  Parishioners 
V.  Slocomb 
V.  Smith 
Kneas  v.  Fitler 
Knight  V.  Egerton 
V.  Fair 
V.  Foster 
Knowles  v.  Gee 
V.  Lord 
Knox  V.  Easton 
Koenig  v.  Bauer 

V.  Nott 
Koiner  v.  Rankin 
Kolb  V.  Bankhead 
Kolme  V.  Insurance 
Koons  V.  Steele 
Koop  V.  Handy 
Kortz  V.  Lafayette 
Kountz  V.  BroAvn 
Kramer  v.  Waywark 
Kribbs  V.  Downing 
Krohn  v.  Oechts 
Kron  V.  Cajjrle 


517 


265, 


470,  489 
654 
354 
535 

556,  656 

410,  485 
558 

673,  6:?:3 

355,  359 
287 
227 
42 
490 
182 
438 
71 
181 
261 

232,  304 
94 
75 

547,  667 
373 

519,  620 
233 
95 
221 
668 
321 

172,  170 
604 
675 
160 
490 
247 

317,  601 
6N8 
171 
658 
180 


Lacefield  v.  Stell 

222 

Lackman  v.  Wood 

194 

La  Crosse  v.  Robinson 

51 

70. 

Ladd  V.  Dudley 

168 

V.  Xorth 

52 

V.  Prentice 

134 

V.  Stevenson 

171, 

254 

Laing  V.  Colder 

662 

Lair  v.  Abrams 

321 

V.  llunsieker 

144 

w.  Mayfield 

16- 

Lamar  v.  Raysor 

144 

Lamb  v.  Johnson 

69 

Lambert  «.  Blackman  703 

V.  M'Farland  1(»7 

Lambden  v.  Conoway  120 

Lamotte  v.  Archer  706 

Lamphcar  v.  Buckingham  (iilf) 

Lancashire  v.  Fitzhugh  377 

Lander  v.  Seaver  434,  438 

V.  Ware  87,  104 

Lane  v.  Applegate  356 

V.  Harrold  230 

V.  Sleeper  193 

Lang  V.  Wilbraham  139 

Langdon  v.  Summers  534 

Langford  v.  Love  150 

Langley's  v.  Jones  159,  213 

Langsdorf  t'.  Field  461 

Larco  v.  Casaneuva  207 

Larman  v.  Huey  199 

Larned  v.  Bruce  133 

Larrabee  v.  Lumbert  219 

Larriviere  v.  Madigan  150 

Latch  V.  Rumner  407 

Latham  v.  Brown  563,  670 

Lathrop  v.  Cook  41 

Laughlin  v.  Greene  256 

Laurent  v.  Vaughn  657 

Laurissini  v.  Doe  142 

Lawler  v.  Earle  517,  523 

Lawrence  v.  Burnham  42 

V.  Lawrence  103 

Lay  V.  Bavles  555 

V.  Neville  278 

Layman  v.  Whiting  145 

Lazard  v.  Wheeler  58 

Leach  v.  Fowler's  402,  466 

V.  Wilbur  524,  624 

Learned  v.  Corley  220 

Leather  v.  Ilirschfield  555,  632 

Leavitt  V.  Leavitt  209 

Lecky  v.  M'Dermot  80 

Ledbetter  v.  Morris  615 

Ledley  v.  Hays  92 

Ledvard  v.  Buckle  52 

Lee 'v.  Gould  38,  67 

V.  Helley  390 

V.  Kane  347 

V.  Lamprey  456 

V.  Portwood  66 

V.  Wolsey  617 

Leese  v.  Clark  225 

Leger  v.  Doyle  469 

Leggett  V.  Baker  562 

Lehman  v.  Brooklyn  687 

V.  Kellerman  10 

Leland  v.  Stone  546 

Leighton  v.  Brown  130 

V.  Sargent  509,  619 

Lemon  v.  Stevenson  6;'.6 

V.  Wright  396 


xlii 


INDEX   TO    CASES   CITED. 


Leod  V.  Oates 

40 

Loop  V.  Chamberlain 

635 

Leonard  v.  Harmon 

13 

Loosey  r.  Orser 

375, 

048 

Leport  V.  Todd 

170 

Lopes  V.  De  Tastet 

497 

Le  lloy  V.  East 

56 

Lord  V.  Bicknell 

124 

Lesey  ».  Baer 

682 

V.  Poor 

75 

Leslie  v.  Reber 

14 

Lord  Delamere  v.  Queen 

364 

Lesscps  V.  Weeks 

394 

Loring  v.  Edes 

235 

Lester  v.  French 

703 

Louisville  v.  Holborn 

42 

Letton  V.  Young 

355,  514, 

515 

V.  Smith 

f.06 

Levi  r.  ]\Iilne 

707 

V.  Young 

566 

Lewis  V.  Buck 

51 

Love  V.  Oldham 

557, 

677 

V.  Cooke 

703 

r.  Shartzer 

219 

V.  Eagle 

246 

Lovett  V.  Burkhardt 

3,  16,  54, 

117 

V.  Great 

459 

Low  V.  Connecticut 

424 

V.  Levy 

358 

V.  Evans 

344 

V.  Masters 

82,  90,  91  1 

V.  Martin 

6f 

I,  01 

V.  M'Natt 

206 

V.  Tilton 

573 

V.  Success 

658 

Lowe  V.  Brigham 

111, 

112 

Lide  V.  Lide 

461 

Lowry  v.  Hall 

41 

Likes  V.  Baer 

487,  610, 

611 

V.  Harris 

441 

Lillord  V.  Whitaker 

570 

Lozler  v.  New  York 

175, 

182 

Lills  V.  Russell 

9] 

L,  94 

Lucas  V.  Nichols 

439, 

511 

Lilly 

263 

V.  Trumbull 

566 

Lincoln 

681 

Luckett  V.  Williamson 

223 

V.  Parsons 

490 

Luckfast  V.  Kane 

98 

V.  Saratoga 

574,  583, 

6.S2 

Ludlow  V.  Yonkers 

582 

V.  Taunton 

414,  475 

483 

Lund  V.  Tyngsboro 

244,  418, 

451 

Linder  v.  ISIonroe's 

703 

Lunday  v.  Thomas 

470, 

490 

Lindsay  v.  Blood 

135 

Luther  v.  Winnisimmet 

560 

V.  Davis 

296 

Lutz  V.  Yount 

34 

Linford  v.  Lake 

343 

Lydston  v.  Powell 

160 

Link  V.  Vaughn 

285 

Lyfbrd  v.  Thurston 

201 

Linsley  v.  Bushnell 

682 

Lyle  V.  Rollins 

170 

Linton  v.  Hurley 

406 

Lynch  v.  Commissioners 

42 

Linville  v.  Black 

650 

V.  Cox 

189 

219 

Lisher  v.  Peirson 

87 

V.  Knight 

622 

Litchfield  V.  Railroad 

228 

V.  People 

237 

Little  V.  Barlow 

323 

,  351 

V.  Welsh 

94 

V.  Barreme 

698 

Lyon  V.  Kain 

205 

V.  Stanback 

629 

V.  .Mottuse 

142 

V.  Tingle 

600 

V.  Summers 

614 

Littler  v.  Franklin 

493 

Lyons  v.  Wattenberger 

458 

Littleton  v.  Richardson 

480 

Liverinore  v.  Boutelle 

222 

Livingston  v.  Plainer 

702 

M. 

V.  Wood  worth 

631 

Lloyd  V.  Goodwin 

104 

McAneany  v.  Jewett 

552 

,  555 

Loard  v.  Philips 

223 

McAroy  v.  Wright 

252 

,  613 

Locke  V.  Matthews 

186 

McArther  v.  Lane 

59 

Lockwood  V.  Mills 

207 

McArthur  v.  Hogan 

114 

V.  Perry 

36 

McBeth  V.  Van  Sickle 

120 

Loftin  V.  Cobb 

176 

,  179 

McCabe  v.  Knapp 

697 

Logansport  v.  Wright 

236 

V.  Morehead 

101 

Loker  v.  Damon 

585 

McCann  v.  Rathbone 

140 

Lombard  v.  Oliver 

499 

McCarthy  v.  Cabrera 

550 

Loneden  v.  Loneden 

540 

V.  Yale 

207 

Long  V.  Lamkin 

667 

McCarty  v.  Fremont 

283 

Loomis  V.  Foster 

82 

V.  Gage 

49 

V.  Youle 

27,  85 

V.  Hudsons 

24 

INDEX   TO   CASES   CITED. 


xliii 


McCauley  v.  Davidson 
M'  Ca  key  v.  Grail' 
McClanalian  v.  Barrow 
Mcritllan  V.  CornwL'U 
McClurkin  v.  Ewiiig 
McColfian  v.  Huston 
McConnell  v.  Kibbe 

V.  M'Kenna 
McCorinic  v.  Lepgett 
McCormick  v.  ^IcCormick 

V.  Seymour 
McCoy  V.  Cadle 
McCracken  r.  Roberta 
JMcCreary  v.  Turk 
MfCreer  v.  Willett 
McCuUongh  V.  Wall 
McCuue  V.  Norwich 
]\IrCutchin  v.  Piatt 
McDormott  v.  Ishell 
McDonald  v.  Badger 

V.  Chicago 

V.  North 

V.  Prescott 


329 
16 
1G5 
402 
613 
109 
245,  247,  251 
353 


Scaife 

Schneider 

Smith 


^McDowell  V.  Bissdl 
McEldery  v.  Flannagan 
McEntire  v.  Brown 
McEwen  v.  Kerfoot 
McFarland  v.  Carver 
V.  Deane 
McGaffee  v.  Millard 
McGarrity  v.  Byington 
McGavock  V.  Chamberlain 
McGeliee  v.  Mahone 
McGibbeny  r.  Burmaster 
ISIcGlone  v.  Prosser 
IMcGregor  v.  Comstock 
]\I(  Guire  v.  Great 
McIIarg  V.  Eastman 
IMcI lvalue  v.  Holland 
IMcInroy  v.  Dyer        538,  551,  562,  560 


209 

97 

631 

27 

173 

427 

647 

176 

260,  599 

404 

132 

168 

677 

591 

48 

98 

147 

67 

4o7 

59 

183 

276,  556 

550 

323 

258 

167 

691 

445 

155 

237 

144,  158 

586 

230 

83,  84,  102 


Mclntyre  v.  New  York 

V.  Park 
!McIsaacs  t'.  Hobbs 
McKay  V.  Glover 
McKoan  v.  Cutler 
McKcnzie  v.  Perrill 
McKce  V.  Pope 
^IcKeon  v.  Citizens 

IMcKinney 
V.  Crinnion 
V.  Dunlop 
V.  KatclifF 
Miller 
Burliank 
^McLcmore  ?'.  Pinkston 
McLoren  v.  Long 


M'  Kinney 
McKniirh't 


IVIcLane  v. 
McLean  v. 


680 
708 
68,  70 

184,  197 
100 
150 
126 
605 
320 
13 

110,  114 

581,  590,  601 

558 

400 

445,  454 
588 


^IcLure  v.  Hart  656 

McMahan  v.  Rice  258 

McMinn  v.  Mayes  164,  220 

V.  O'Connor  168,  208 

McNabb  v.  Lockhart  478 

ISIcNamee  v.  IMorelaitd  208 

McNeal  v.  Leonard  114,  116 

McNeely  v.  Hunton  450 

]\IcNeill  V.  Arnold  91 

McNorton  v.  Akurs  28,  404 

McPherson  v.  Chedeall  514 

V.  Melhinch  87 

McReynolds  v.  Londenberger  162 

McTaggart  v.  Rose  233 

McTavish  v.  Carroll  646,  697 

McVey  v.  Blair  541 

Mc^V'^^)^rter  v.  Douglas  581 

McWhorter  r.  Sayre  '<    3 

McWilliams  v.  Bragg  600 

V.  King  280 

Maccubbin  v.  Thornton  569 

Macfarlane  i'.  Ellis  618 

Macon  v.  Johnson  413,  454,  689 

V.  Winn  705 

Macrae  v.  Clark  658 

Magee  v.  Doe  196 

V.  Scott  402 

V.  Siggerson  75 

Maguire  v.  Tyler  232 

V.  Woodside  434 

Mahone  v.  Williams  467 

Major  V.  Pullain  598 

]\Iallett  V.  Uncle  147,  199 

Mallory  v.  Leach  249 

Malone  v.  I\Iurphy  599 

Mann  v.  Bin  hard  284 

V.  Marsh  268 

V.  Perkins  85 

V.  Rogers  229 

Mann's  v.  Falcon  307 

Manning  v.  Albee  66 

V.  Monaghan  669 

Manny  v.  Rixford  276 

V.  Smith  157 

INfara  v.  Pierce  213 

Many  v.  Merchants'  -l-'O 

Marlliorouyh  v.  Sisson  494,  578 

Marley  v.  M'Anelly  275 

Marfjuart  v.  La  Farge  548,  579 

Marr  v.  Gilliam  200 

Marsh  v.  Gold  538 

V.  Smith  160,  102 

Marshall  v.  Betner  682 

V.  Davis  4 

V.  Hamilton  329 

V.  New  York  657 

V.  Shaftcr  206 

V.  Simpson  644 

V.  Wing  194 


xliv 


INDEX  TO   CASES   CITED. 


Marston  v.  Baldwin 
Martin  v.  Anderson 

V.  Bailey 

V.  Bartow 

r.  Drunim 

V.  Good 

V.  Martin 

V.  ]\Iiller 

V.  Ray 

V.  Smith 
Mason  v.  Sumner 
IMassey  v.  Craine 
]\1  asters  v.  Warren 
Masferson  v.  Cheek 
j\Iatlofk  V.  Straughn 
Matter,  &e. 
Matteson  v.  New  York 
Matthews  v.  Bliss 

V.  Lecompte 
V.  Poultney 
Matthie  v.  Barton 
IVIattingly  v.  Crowley 
JNIattison  v.  Smith 
IMattoon  v.  Pearce 
]\raul  V.  Rider 
IMaxedon  v.  State 
Maxham  v.  Day 
Maxon  v.  Perrott 
Maxwell  v.  Light 

V.  Maxwell 
Mayall  v.  Boston 
iMayliee  v.  Fisk 
Maybey 

V.  Adams 
Mayberry  v.  Cliife 
^laye  v.  Tappan 
Mayer  v.  Clark 
Mayhew  v.  Nelson 
Mayor  v.  Poultney 
Mead  V.  Kilday 
Meagher  v.  Morgan 
Means  v.  Hyde 
Meaux  v.  Rutgers 
^ledbury  v.  New  York 
Meeker  v.  Wren 
Mein  V.  Ratlibone 
Melcher  v.  Flanders 
V.  Lamprey 
Meldrum  v.  Snow 
Mellen  v.  Baldwin 

V.  Thouii)Son 
Mellor  V.  Shaw 
Melvin  v.  Winslow 
Menkens  v.  Menkens 
Menkins  v.  Blumenthal 
]\Iennie  v.  Blake 
Mentz  V.  Second 
Mercer  v.  Doe 
Merchants'  v.  Bank 


6,  0 

ISIerchants'  v.  Harrison 

146 

19o 

Merest  v.  Harney 

698 

11:5 

Merford  v.  Cook 

189 

262 

Meriden  v.  Whedon      32,  47,  205,  265 

394 

Merrill  v.  Chapman 

147 

4;]0 

V.  Foster 

451,  452 

207 

V.  Gould 

211 

3:3:3 

V.  Manufacturing 

GOO 

84,  85 

V.  Plainfield 

260 

lOG 

Merritt  v.  Earle 

887 

130 

V.  Mayor  ' 

444 

549 

V.  Nashville 

306 

547 

V.  Wright 

444 

1G4 

Mersey  v.  Douglas 

327 

110 

Meshke  v.  Van  Droen 

105 

029 

Messer  v.  Bailey 

98 

421,  447 

V.  Gardner 

64 

611 

V.  Hetherington 

235 

185 

Metcalf  z^.  Stryker 

669 

504 

Metropolitan  v.  Petch 

368 

274 

Metters  v.  Brown 

215 

107 

Meyers  v.  Hill 

149,  155 

275 

Mezes  v.  Greer 

147 

126 

Michigan  v.  Caster 

656 

200 

Mickie  V.  McGehee 

608 

263 

Miekle  v.  Miles 

667 

1 

Mikesill  v.  Chaney 

103 

42,  109 

Milburn  v.  Beach 

600 

25 

Miles  V.  Caldwell 

229 

245 

V.  McDermott 

233 

268 

Milford  V.  Holbrook 

272 

514 

Millard  v.  Brown 

664 

425 

V.  Richard 

170 

288,  294 

Millaudon  v.  Ranney 

205 

104 

Miller  v.  Adsit 

62 

561 

V.  Casselberry 

223,  224 

636 

V.  Larson 

208 

442 

V.  Laubach  , 

628 

694 

V.  Moses 

133 

29 

V.  Sleeper 

81,  82 

255 

V.  Smith 

203 

545 

V.  Surls 

146 

119 

V.  Van  Tassel 

232 

656 

V.  Warner 

2 

2'i2 

Milliken  v.  Seyle 

26 

234 

JNIillison  v.  Hoch 

61« 

162,  211 

Mills  V.  Gilbreth 

405 

41 

V.  Gleason 

120,  126 

46 

V.  Jefferson 

262 

63 

V.  Mills 

243 

322 

Milton  V.  Webster 

541 

271 

Milwaukee  v.  Finney 

464,  664 

129 

V.  Hunter 

480 

670 

IVIims  V.  Higgins 

169 

163 

iMinehrod  v.  Windoes 

9,  76 

4 

Miner  v.  Phillips 

463 

705 

Minkhart  v.  Ilankler 

224 

166,  533 

Minor  v.  Picayune 

697 

432 

V.  Wright 

545 

INDEX   TO    CASES   CITED. 


xlv 


Misli  V.  Wood 

21 

Morris  v.  Callanan 

177 

Mitchell  V.  Baratta 

163 

202 

V.  De  AN'itt 

54 

V.  Clap 

236 

V.  Ilazlewood 

4-.'9 

V.  Commonwealth 

642 

V.  MWk'T 

460 

540 

V.  Crasweller 

247 

V.  Moore 

301 

V.  Ingram 

120, 

132 

V.  Kyerson 

484 

V.  MitclR-ll 

485 

V.  Van  Voast 

118 

V.  Uockland 

442 

Morrison  v.  Austin 

107 

V.  Western 

393 

V.  Gross 

702 

Mixer  V.  Cook 

67 

V.  Hays 

171 

Mockford  v.  Taylor 

835 

V.  Wilson 

149 

IMolierly  v.  Alexander 

611 

677 

Morse  v.  Connecticut 

442 

Molin  t'.  Stoiier 

35 

V.  Gilman 

255 

Moises  V.  Thornton 

514 

V.  Hodsdon 

120 

Monke  v.  Butler 

303 

V.  Sleeper 

209 

Moiikton  V.  Asliley 

303 

Morss  V.  Stone 

60 

Montgomery  v.  Black 

109 

Morton  V.  Preston 

674 

V.  Edwards 

424 

V.  Scull 

613 

V.  Gilmer 

261, 

331 

Moseley  v.  Anderson 

41 

104 

Montour  v.  Purdy 

182, 

275 

Moses  V.  Gatewood 

357 

Moody  V.  Fulmer 

165 

Mosher  v.  Yost 

164 

V.  Harper 

221 

Moss  V.  Hindes 

314 

V.  Os<;ood 

616 

518 

V.  Shear 

147,  218 

:.'2l 

Moon  V.  Rollins 

168 

Mosse  V.  Bennett 

328 

Mooney  v.  Kennett 

253 

617 

jNIostyn  v.  Coles 

707 

r.  Myers 

77 

Motte  V.  Alger 

216 

Moor  V.  Adam 

616 

Moulton  V.  Bird 

110 

Moore  V.  Aldrich 

590 

i\  Doran 

252 

V.  Campbell 

133 

V.  Smilh 

98 

:U7 

V.  Clucas 

28G 

V.  Witherell 

318 

V.  Devol 

107 

Mounson  v.  Redshaw 

109 

V.  Love 

659 

]\Iount  V.  Andrews 

56 

V.  McKibbin 

335 

INIowrey  v.  Smith 

508 

V.  Moore                    5, 

233 

645 

Mowry  V.  Wood 

675 

V.  jNIorron 

188 

jMuck  V.  Folkroad 

77 

V.  Murdock 

213 

280 

Mueller  v.  St.  Louis 

589 

V.  Shenk 

94, 

116 

Mulholland  v.  Ellitson 

464 

V.  Small 

217 

Muliiolm  V.  Cheney 

61 

V.  Stevenson           513, 

516, 

520 

MuUett  V.  Challis 

645 

V.  Tice 

147 

V.  Mason 

575, 

678 

V.  AVestorvelt 

533 

Mullins  V.  Cottrell 

607 

V.  Winter 

570 

iNIiunmery  v.  Paul 

277 

V.  Worley 

182 

Munch  V.  Williamson 

262 

l^Ioorinan  v.  Quick 

27 

Munson  v.  INIunson 

172,  202, 

319 

Moors  V.  Parker 

86 

Mure  V.  Kaye 

254 

Moreau  v.  Detchemcndy   ICO, 

161, 

206 

Murfey  i'.  Brace 

476, 

477 

^Morehouse  v.  Bowen 

117 

Murphree  v.  Singleton 

463 

V.  Northrop 

424 

Murphy  V.  Griggs 

469 

Morford  v.  Woodworth 

608 

V.  Nathans 

224 

Morgan  v.  Biggs 

90 

V.  New  York 

238,  327, 

6S4 

V.  Craig 

57 

V.  Orr 

194, 

204 

V.  Gregg 

592 

V.  Springer 

177 

V.  Negley 

583 

V.  Tilly 

262 

V.  Powell 

571 

V.  Tindall 

8 

V.  Quick 

28 

I'.  Wallingford 

175 

V.  Span<:ler 

41 

IMurray  v.  Walker 

160 

Morrill  v.  Chapman 

225 

Murrell  v.  Dixey 

660 

Morris  v.  Baker 

118 

Musgrave  v.  Hall 

57 

V.  Barker 

619 

MuHsey  v.  Perkins 

262 

xlvi 


INDEX   TO    CASES   CITED. 


Myers  v.  Crodle 

V.  Hill 

V.  Smith 
V.  Williams 


N. 

Nagle  V.  Macy 

V.  Mullison 
Nail  V.  Granger 
Nantic  v.  Dennis 
Nash  V.  Hall 
Nashville  v.  Alexander 
Natchez  v.  Vandervelde 
National  v.  Orcutt 
Natoma  v.  M'Coy 
Neal  V.  Scott 
Neale  v.  Seeley 
Neave  v.  Avery 
Nebraska  v.  Campbell 
Neill  V.  Newton 
Nellis  V.  New  York 
Nelson  v.  Cook 
New  V.  Fields 
V.  Kinfield 
V.  Slaughter 
Newbegin  v.  Langley 
Newbery  v.  Garland 
Newby  v.  Jackson 
Newell  V.  Hayden 

V.  Woodruff 
New  Jersey  v.  Nichols 

V.  West 
Newlin  v.  Osborn 
Newman  v.  Jenne 
New  Orleans  v.  Allbriton 
V.  Hirst 
V.  Moore 
Newsome  v.  Thighen 
Newstadt  v.  Adams 
Newton  V.  Gardner 
New  York  v.  Hicks 

I'.  Traham 
Niagara  v.  Cordes 
Nichols  V.  Chapman 
V.  Michael 
V.  Tremlett 
Nickereon  v.  Chatterton 
V.  Harriman 
V.  Soesman 
V.  Todd 
NicoU  V.  Fash 
Nightingale  v.  Scannell     578, 

Niles  V.  Patch 

Nill  V.  Brooks 

Nininger  v.  Commissioner 

Nivin  V.  Stevens  597, 


58 

Nixon  V.  Carco 

403 

227 

V.  Harvey 

358 

489 

V.  Porter 

146, 

221 

119 

Noble  V.  Epperly 
V.  Parkman 

69, 

103 
27 

Noble's  V.  Laley 

282, 

283 

Nobles  V.  Christmas 

551 

Noe  V.  Card 

213 

171 

Noonan  v.  Ilsley 

424 

698 

Norbury  v.  Kitchin 

629 

535 

Norcross  v.  Norcross 

387 

403 

Norcum  v.  D'CEnch 

147 

392 

Nored  v.  Adams 

448 

104 

Norfolk  V.  Germaine 

542, 

694 

228 

Norman 

548 

256 

Norris  v.  Morril 

487 

599 

630 

V.  Norton 

272 

277, 

445 

V.  Russell 

202 

399 

North  V.  Akers 

413 

573 

149 

V.  Hireen 

229 

574 

636 

V.  McDonald 

681 

GU8 

V.  Mahoney 

272 

236 

V.  Robinson 

269,  686 

689 

651 

V.  Stonington 

453 

455 

490 

Northern  v.  SchoU 

249 

447 

Norton  v.  Huxley 

296 

490 

Norwich  v.  Breed 

381 

211 

Nossaman  v.  Rickert 

604 

293 

294 

Noxon  V.  Hill 

638 

4  2 

Nuckolls  V.  Pinkston 

410 

288 

Nutting  V.  Herbert 

491 

172 

200 

V.  Page 

489,  449 

453 

573 

Nutwell  V.  Tongue's 

194 

705 

Nye  V.  Merriam 

607 

146 

90 

O. 

606 

682 

632 

Oakland  v.  Fielding 

695 

680 

Oakley  v.  West 

337 

490 

Oaks  V.  Harrison 

394 

249 

387 

V.  Wvatt 

85 

59 

Obert  V.  Obert 

227 

145 

O'Connor  v.  Union 

82,  85,  86 

394 

Odiin  V.  Gove 

212 

398 

Oetgen  v.  Ross 

191 

869 

Ogden  V.  Stock 

11 

62 

Ogletree  v.  State 

397 

556 

O'Hara  i'.  Richardson 

158 

174 

126 

133 

Ohio  V.  Bath 

427 

608 

V.  Brown 

238 

653 

V.  Davis 

379 

162 

V.  Hammersley 

436 

208 

V.  Taylor 

393 

640, 

643, 

V.  Tiiidall 

686 

646 

O'Keefe  v.  Kellogg 

100 

466 

469 

Oliphant  v.  Smith 

23 

233 

Oliver  v.  Chapman 

248 

612 

404 

V.  Townsend 

118 

598, 

665 

V.  Williams 

174 

175 

INDEX   TO    CASES   CITED. 


xlvii 


O'Afara  v.  Hudson  689 

O'iMcara  v.  North  American  (i74 

O'Noall  V.  South  63:^ 

O'Neil  V.  Gluver  456 

V.  Vanderburg  210 

Orcutt  V.  Raiiney  623 

Oreainuno  v.  Uncle  Sara  390 

Olieilly  V.  Good  57,  74 

V.  Shadle  407,  602,  701 

Ormond  v.  iNIartin  219,  221 

Ormsby  v.  Johnson  003 
Orton  V.  Noonan                 207,  208,  224 

Ortwine  v.  Baltimore  243 

Osgood  V.  Coates  188,  468 

V.  Green  7 

O'Shea  v.  Kirker  701 

Otis  V.  Mechanics  283 

Ottawa  V.  Graham  412,  487 

V.  Thompson  203 

Ouliber  v.  Creditors  282 

Oiilv  r.  Dickinson  63 

Ously  V.  Hardin  600,  618 

Oviatt  r.  Tond  581 

Owen  V.  Fowler  144 

V.  Morton  144 

Owens  V.  Myers  172 


Packard  v.  New  Bedford 

480 

V.  Slack 

600 

Parqiiette  v.  Pickness 

219, 

221 

Page  V.  Cole 

150 

V.  Crosby 

8 

V.  Fowler 

10 

V.  :\litL-hell 

619 

r.  O'Brien 

178 

V.  Parker           271, 

456, 

610, 

611 

V.  Weeks 

9o 

Paget  V.  Cook 

492 

Pallet  V.  Sargent 

620, 

521, 

523 

Palmer  v.  Concord 

398 

V.  Crook 

541 

V.  Haskins 

518 

V.  Skillenger 

320 

V.  Wilks 

298 

Panncll  v.  Hampton 

104 

Panton  v.  H(jlland 

329, 

490 

V.  Norton 

474 

Parham  t'.  Riley 

29, 

104 

Park  V.  ]\ri)aniels 

590, 

680 

Parke  v.  Biackiston  356, 

359, 

514, 

519 

Parker  i'.  llcndric 

397 

V.  Jenkins 

549 

V.  Kane 

491 

V.  Lowell 

276 

526 

590 

V.  Parker 

207 

311 

V.  Simonds 

100 

128 

Parker  v.  Walker 
Parkey  i'.  Yeary 
Parkliurst  v.  Ketchura 
Parks  V.  Boston 
Parmer  v.  Anderson 
Parr  v.  Van  Horn 
Parsley  v.  Nicholson 
Parsons  v.  Harper 
V.  Hedges 
0.  Martin 
V.  Moses 
V.  Pettingell 
Partridge  v.  Swasey 
Parvin  v.  Hoopes 
Paschal  v.  Acklin 
Pasley  v.  English 
Pastorius  v.  Fisher 
Patch  V.  Keeler 
Paterson  v.  Evans 
Patrick  v.  Sherwood 
Patrickson  v.  Patrickson 
Patten  v.  Adams 
V.  Libbey 
Patterson  v.  Colebrook 
V.  Flanagan 
V.  Fowler 
V.  Hansel 
V.  Hubbard 
r.  Kirkland 
V.  W^ilson 
Pattison  v.  Adams 

V.  Richards 
Paul  V.  Currier 
V.  Slason 
Paull  V.  Eldred 
Payne  v.  Green 
V.  Pacific 
V.  Treadwell 
Payson  v.  Macomber 
Peabody  v.  Hewett 
Pearce  v.  Twichell 
Pearson  v.  Howe 
Pearsons  i'.  Eaton 
Pease  v.  C hay ton 
Peck  V.  Yorks 
Peckham  v.  Burlington 
Pedrick  v.  Porter 
Peek  V.  Inlow 

V.  Newton 
Peeler  v.  Guilkey 
Peet  I'.  Chicago 
Pel  berg  v.  Gorham 
Penobscot  v.  Veazie 
Penn  v.  Steadman 
Pennsylvania  v.  Adams 
V.  Allen 
V.  Books 
V.  Butler 
I".  Central 


612 
454 
518,  5'JO 
571 
514 
2(15 
233 
318,  428,  018 
105 
674 
222 
668 
68 
651 
146 
174 
555 

162,  491 
224 
148 
540 

193,  190 
//90 
418 
402 
82,  122 
214 

223,  228 
294 
152 
28,  77,  78,  .s9 
:;00 
243 
554 
220 

304,  311 

705 

141,  203,  204 

342,  354,  357 

144,  221,  222, 408 

104 


290 
102 
372 
457 
271 
297,  475 
668 
148 
199 
050 
209 
159 
502 
691 
606 
444,  COO 
690,  091 
187 


266, 


xlviii 


INDEX   TO    CASES   CITED. 


Pennsylvania  v.  Henderson      380,  410, 

423,  443,  689,  690 

V.  Jack  ooO 

V.  Keller  693 

v.  M'CIosky         690,691 

V.  Ogier  684,  685 

V.  Vandever  6S7 

V.  Zebe  267,  691 

V.  Zug  285 

Penny  v.  Cook  lol 

Penobscot  v.  Veazie  159 

People  V.  Anderson  540 

V.  Batchelder  175 

V.  Booth  264 

V.  Judge  230 

V.  Judges  102 

V.  Mayor  192 

V.  New  York  84 

V.  Niagara  109 

V.  Reeder  538 

V.  Supervisors  85 

V.  Third  391 

V.  Trinity  170,  173,  187 

V.  Tripp  102 

V.  Vernon  453 

V.  Warner  261 

Peoria  v.  Frost  264 

V.  Loomis  583,  600 

V.  MTntire  262 

V.  Walser  233 

Pepoon  V.  Clarke  576 

Perkins  v.  Blood  144,  191 

V.  Freeman  568,  645 

V.  Mitchell  353 

V.  Raitt  212 

V.  Rudolph  119 

V.  Towle  487,  601 

Perrin  v.  Garfield  177,  186 

V.  Marsh  297 

Perry  v.  Richardson  41 

V.  Scott  156,  190 

V.  Whipple  168 

Persee  v.  Watrous  135,  136 

V.  Willett  410,  465 

Peterman  v.  Huling  157 

Peters  v.  Florence  160 

Peterson  v.  Lake  199 

r.  Speer  456 

Petrie  v.  Fisher  123 

Pettingill  v.  Merrill  33 

V.  Porter  250 

Peyton  v.  Robertson  25 

t).,Rose  149 

Phelan  v.  Bonhana  18 

Phelps  V.  Cutter  532 

V.  Owens  643 

V.  Paris  557 

V.  Piatt  263 

V.  Ratcliffe  403 


Phelps  V.  Sill 

254 

V.  Wait 

272 

Phenix  v.  Clark 

75 

102 

rhiiadelphia  V.  Howard 

613 

V.  Quigley 

599 

,  620 

Piiilips  V.  Harriss 

42 

100 

Phillips  V.  Eiwell 

533 

V.  Hoyle 

578 

695 

V.  Hyde 

109 

V.  Kelly 

446 

V.  Phillips 

316 

V.  Starr 

422 

V.  Town  send 

83,87 

V.  Whitsed 

24 

Phipps  V.  Boyd 

24 

Pickard  v.  Howe 

20 

Pickering  v.  Pulsifer 

703 

Pickett  V.  Bridges 

103 

V.  Congdon 

364 

V.  Crook 

605 

Pier  V.  DufF 

442 

Pierce  v.  Benjamin 

566 

V.  Jackson 

638 

V.  Jaquith 

191 

V.  Millay 

604 

V.  Spring 

701 

V.  Stevena 

68 

V.  Tuttle 

156 

V.  Van  Dyke 

91,  93 

V.  Wilson 

490 

V.  Wood 

703 

Piercy  v.  Sabin 

157 

174 

Pike  V.  Dilling 

600 

V.  Doyle 

549 

V.  Huckins 

100 

Pilkington  v.  Trigg 

28 

Pinchard  v.  Randell 

25 

Pinkerton  v.  Manchester 

673 

Pinneo  v.  Lackawanna 

416 

Pintard  v.  Grilling 

191 

Pioche  V.  Paul 

159, 

212 

Pirani  v.  Barden 

90 

Pironi  v.  Borden 

117 

Pitts  V.  Hale 

63 

V.  Hall 

893 

Pixley  V.  Clark 

365 

Plate  V.  Vega 

246 

Piatt  V.  Brown 

681 

V.  Else 

369 

V.  Picton 

216 

Pleasants  v.  Bank 

702 

Plume  V.  Seward 

173 

Plummer  v.  Harbut 

471, 

609 

V.  Newdigate 

253 

Plunkett  i;.  Moore 

123 

Polack  V.  M'Grath 

178 

Polity  V.  JelFerson 

53 

Polk  V.  Coffin 

426 

V.  Fancher 

664 

INDEX  TO  CASES  CITED. 


xlix 


Pollard  V.  Louisville 

442 

Pridgin  v.  Strickland 

Pollock  V.  Maison 

14G 

Priestley  v.  ^laclcan 

Polly  V.  M'Call 

484,  527, 

630 

V.  Northern 

Pomeroy  v.  Smith 

655 

Primm  v.  Walker 

V.  Triinper 

17,  80 

I'ringle  ii.  Phillips 

Pond  V.  (lilson 

,391, 

401 

Prior  ('.  Wilson 

Pool  V.  Devers 

520 

Pritcbard  v.  Blick 

V.  Looinis 

74, 

117 

V.  Culver 

Poole  y.  Wliitcombe 

680 

Proprietors  t'.  Nashua 

Poor  V.  Ilorton 

145 

IVosser  v.  Woodward 

V.  Larrabee 

166 

Pruyn  v.  Black 

V.  Woodburn 

104 

Puckell  I'.  Smith 

Pope  V.  Dalton 

170 

Pugh  V.  Calloway 

V.  Devereux 

457 

V.  Mliae     . 

V.  Jenkins 

98 

Pulliam  V.  Newberry 

V.  ^Iic'liias 

708 

Purcell  V.  Macnamara 

V.  Macon 

162 

Purple  V.  Purule 

Porter  v.  ("Iiicaj^o 

388 

Putnam  v.  Fisher 

V.  Henderson 

623 

Putney  v.  Lapham 

V.  Hermann 

258 

Pyiu  V.  Great 

V.  North 

660 

V.  Pt'cjuonnoc 

426 

Q. 

Porteus  V.  Hazel 

707 

Portland  v.  Stubbs 

36 

Queen'w.  Bucknall 

Pott  ('.  Oldwine 

57 

Queener  v.  Morrow 

Potter  V.  Baker 

141 

Quincy  v.  Hall 

V.  Chicago 

240,  688 

689 

Quintard  v.  Newton 

V.  James 

125 

V.  Knowles 

173 

1«0 

R. 

V.  ^Merchants' 

670 

V.  North 

12,  81,  89 

Rabb  V.  Kilgore 

Potts  r.  Cummonwealth 

639 

Raiford  v.  French 

Pow  V.  Davis 

611 

682 

Raiglur  V.  Hammond 

Powell  V.  Bradlee 

44 

Railroad  v.  Borren 

V.  Hinsdale 

102 

Raisler  v.  Springer 

V.  Millnirn 

392 

Ralston  v.  Black 

V.  Smith 

10 

V.  Strong 

V.  Triplett 

26 

Ramirez  v.  Murray 

Power  V.  Hathaway 

269 

Ramsdale  v.  Greenacre 

Poyen  v.  M'Neill 

89 

Ranisdell  v.  Buswell 

Prater  v.  Frazier 

3,27 

Ramsey  v.  Waters 

Pratt  V.  Hunker 

532 

Rand  v.  Dodge 

V.  Dclavan 

234 

V.  Freeman 

V.  Epperly 

27 

V.  Robinson 

V.  LaiuMon 

401 

Randall  v.  Cook 

V.  Phillips 

491 

V.  Shropshire 

Prentice  v.  Laiid 

62 

Randolph  r.  Adams 

Prentiss  v.  Barnes 

597 

Raney  v.  M'Rae 

V.  Brewer 

151 

Ransom  v.  Labranche 

Prescott  V.  Tufts 

701 

V.  New  York 

V.  Wright 

666 

Rapp  V.  Vogel 

Presgrave  v.  Saunders 

84 

Rateau  v.  Bernard 

President  v.  Smith 

381 

Rathburn  v.  Ranney 

I'.  State 

479 

Raw  lings  v.  Bailey 

Preston  v.  Bowers 

642 

V.  Norbury 

V.  Jones 

5<»3 

Rawls  V.  Doe 

Price  V.  Hewett 

297 

Rawson  V.  Morse 

V.  New  Jersey 

443 

Raw  V.  Sellers 

V.  Van  Dyke 

109 

Raymond  i^.  Kinney 

690 

679 
657 
193 

65,  91 

522 

6»2 

59 

181,  212 

88 

272 

576 

43 

647 

536 

392 

123 

162 

268 

684,  685 


235 

439 

48,  49 

283 


118 

454 

512 

692 

410,  454 

47 

74 

202 

349 

58 

96 

170,  221 

500 

157 

69 

233 

410 

703 

29,  545 

616 

42 

263 

108 

2113 

350 

141 

805 

326 

628 


INDEX  TO   CASES    CITED. 


Ray  lie  v.  Taylor 

519 

Richardson  v.  Dunn 

681 

Rayiter  v.  Kinney 

620 

V.  P^astman 

304 

Raynor  v.  Tinierson 

210 

V.  Hall            249 

251 

374 

Rayson  v.  Adcoik 

160 

V.  Harvey 

202 

Rcaci  ('.  Animidon 

361 

V.  M'Nulty 

145 

V.  Barker 

423 

,  484 

V.  Keed 

44 

I'.  Lang 

291 

V.  Richardson 

541 

Road's  Case 

459 

V.  Roljerts       517 

520 

,  521 

Ream  v.  llarnish 

4G0 

666 

V.  Smith 

83 

Rector  ('.  Chevalier 

J,  63 

Richmond  v.  Bell 

640 

Redman  r.  Henricks 

G8 

115 

V.  Rogers 

637 

Redmond  v.  Anderson 

395 

V.  Willis 

534 

Rtdib  w  V.  Brooks 

706 

Richter  v.  Ptiley 

157 

Reed  v.  Bias 

569 

Rickets  V.  Sabrey 

497 

V.  Peiletier 

464 

Rickeits  v.  Lostetter 

666 

V.  Rogers 

28  y 

Rickner  v.  Dixon 

39 

V.  Stoney 

307 

Ridge  V.  Wilson 

699 

V.  Wilson 

103 

Ridgely  v.  Bond 

693 

Reeder  v.  Brown 

252 

Ridlon  V.  Emory 

13 

V.  Purdy 

564 

Rigg  V.  Curgenver 

540 

Reese  v.  Mitchell 

48 

Riggs  V.  Thatcher 

538 

Reeside  v.  Fischer 

40 

Riland  v.  Eckert 

192 

Reeves  v.  Constitution 

697 

Riley  v.  Griffin 

175 

V.  Larkin 

249 

V.  Suiith 

202 

206 

Reformed  v.  Schoolcraft 

146,  157 

172 

Ripka  V.  Sargeant 

628 

Refugio  V.  Byrne 

279 

Ripley  v.  Davis 

590 

Reiiister  v.  Rowell 

164 

V.  Miller 

310 

Reid  V.  Rcid 

429 

Rippey  v.  Miller 

607 

Redy  v.  Lancaster 

187 

Rives  V.  Thompson 

160 

Relberg  v.  Gorham 

643 

R.  L.  V.  May  bey 

425 

Remirk  v.  Butterfield 

472 

Roach  V.  Moulton 

14 

Renick  v.  Orser 

647 

Bobbins  v.  Chicago 

329 

Renwick  v.  New  York 

391 

V.  Hudson 

707 

Repine  v.  M'Pherson 

50 

V.  Packard 

671 

Requa  V.  Guggenheim 

255 

Roberts  v.  Albriglit 

261 

Reuck  V.  M'Gregor 

619 

V.  Chan  Tin 

161 

Reutgen  v.  Kanowrs 

699 

V.  Dauphin 

9 

Reveal  v.  Conner 

233 

V.  Fales 

682 

Rex  V.  Hawkins 

392 

V.  Graham 

546 

595 

V.  Leeds 

9,  10 

V.  Great 

382 

Reynolds  i'.  Cox 

614 

V.  Haskell 

403 

V.  Sallee 

41 

V.  Kain 

690 

V.  Vilas 

164 

V.  Mason 

603, 

682 

Rhines  v.  Plielps 

51 

V.  Orr 

193 

Rhoads  v.  Woods 

101 

V.  Pillow 

213, 

404 

Rhode  Island 

697 

V.  Randall 

39 

Rhodes  v.  Otis 

283 

V.  Kandel 

7 

V.  Silvers 

524 

V.  Smith 

703 

Rice  V.  Baxendale 

656 

V.  Snell 

22 

V.  Cottrel 

353,  512, 

516 

V.  Thorn 

200 

I'.  Cunningham 

467, 

468 

V.  Unger 

187 

I'.  Nickerson 

695 

V.  Young 

536 

Rich  V.  Baker 

10 

Robertson  v.  Caldwell 

96 

V.  Jones 

529 

V.  Davidson 

134 

V.  Ryder 

61 

,  80 

V.  Knapp 

423 

Richard  v.  Mooney 

117 

V.  Reed 

605 

Richards  v.  Farnhara 

597 

Robin  V.  Steward 

654 

V.  Randall 

218 

Robinet  v.  Ruby 

354 

V.  Skill" 

472 

Robinson  v.  Armstrong 

336 

INDEX   TO   CASES   CITED. 


Robinson  v.  Barrows 

506 

Rupert  I'.  Mark 

146, 

204 

V.  Burton 

bA-> 

Rush  V.  Vought 

216 

V.  Calloway 

(M 

Russ  ('.  Brooks 

520 

V.  Fitfhburg      303, 

407,  40.S, 

r.  Steamboat 

577 

439 

,  443,  480 

Russel  V.  Allen 

59 

V.  Forrest 

167 

Russell  V.  Brooks 

171 

V.  Maiisfiuld 

643 

V.  Clapp 

261 

V.  Mead 

12 

V.  Erwin's 

174, 

198 

V.  IMtoer 

463 

V.  Gray 

43, 

107 

V.  I'itzer 

466 

V.  Horn 

415 

V.  Ki>l)i'rts 

VX) 

RusselTs  V.  Maloney 

224 

V.  Rohiiison 

4(i9 

Ivust  V.  Flowers 

275 

V.  Wliilc 

491 

Ruiland  i\  Ilathora 

453 

Rochilale  v.  Radcliire 

367 

Ryan  r.  Baldiiek 

547 

Kockwc'll  r.  Saunders 

27,  36,  99 

V.  'rondiiison 

147 

Roi'kwooil  V.  Allen 

647 

Ryers  v.  Wheeler 

218 

Rodericks  v.  Payne 

2 

Ro(lfj;ers  v.  Rodgers 

336 

s. 

Rodwell  V.  Redge 

392 

Roe  V.  Doe 

223 

V.  Lalonette 

238 

Saekett  v.  Kellogg 

21 

Rogers  v.  Aekertnan 

423 

Sadler  v.  Anderson 

471 

V.  Arnold 

83 

Saffell  u.  Wash 

41, 

113 

V.  Beard 

658 

Saiford  v.  Hynds 

160 

V.  Crombie 

585 

Sage  V.  ]Mosl>er 

291 

V.  Parish 

225 

Sager  v.  Blain 

9 

Roland  v.  Fischer 

214 

Salmon  v.  Orser 

384 

V.  Gundy 

68 

V.  Symonds 

203 

207 

Romaine  v.  Commissioners 

651 

Saltus  V.  Genin 

295 

V.  Van  Allen 

674 

Saniuions  v.  Newman 

233 

Romig  V.  Roniig 

670 

Sampson  v.  Hein-y 

565 

Ronge  V.  Dawson 

7 

Sanborn  v.  Baker 

533 

Ropes  V.  Lane 

67,87 

V.  Leavitt 

14,  54 

Ropps  V.  Barker 

311 

Sanders  v.  Anderson 

551 

Rose  V.  Lewis 

670 

V.  Bank 

641 

V.  Story 

551 

Sanderson  v.  INLirks 

76 

V.  Tolly 

107 

Sanibrd  v.  Eighth 

632 

V.  Trcaclway 

252 

Sankey  v.  Noyes                  159 

176 

I'lS 

Rosebrooks  v.  Dinsmore 

394 

Sargent  v.  Franklin 

673 

Rosinbury  v.  Angell 

536 

V.  Hampden 

6;l6 

Ross  V.  Boston 

481 

V.  South 

668 

V.  Hay  lie 

634 

Sargi  V.  Colmer 

166 

V.  Ileiiitzen 

201 

Sas-man  v.  Bri.>-bane 

23 

V.  H<de 

662 

Satchell  V.  Doram 

243 

Ronntree  v.  Little 

149 

Satterlee  v.  Bliss 

193 

Rowan  o.  Kelsey 

182 

Saulters  v.  Victory 

650 

V.  Teague 

96 

Saunders  v.  Darling 

539 

Rowans  v.  Givens 

143 

Saunderson  v.  Lace 

110 

111 

Rowark  v.  Lee 

115 

Savery  v.  Hays 

12 

Rowel  1  ('.  Hay  den 

187 

Sawyer  v.  Baldwin 

12 

Rowland  v.  l>adiga 

196 

V.  Goo(lwin 

318 

c.  ]\lann 

81 

V.  Huir 

94 

V.  LT])dike 

396 

Saxton  t'.  Williams 

105 

Rowley  v.  (iibbs 

101 

Say«'rs  v.  Holmes 

104 

Royall  V.  Lisle 

175,  179 

Sayles  v.  Davis 

332 

Roys  V.  Lull 

309 

Sayre  v.  Rockford 

323 

Royston  v.  Wear 

205 

Savward  c.  Warren 

39,  83 

Rudd  0.  Williams 

527 

Sciiaeirer  v.  ]\Iarienthal 

-.69 

Rundlett  v.  Weeber 

278 

Schaelzel  v,  Germantown 

234 

247 

Hi 


INDEX   TO    CASES   CITED. 


Schenk  v.  Evoy 
Schindel  v.  Scliindel 
Schmidt  V.  New  York 
Schloy  V.  Lyon 
Schlosser  r.  Fox 
Si-hluniherger  v.  Lister 
Schoenberger  v.  Baker 
Schofield  V.  Ferrers        2, 

V.  Whitelegge 
School  r.  Lord 
Sihoonover  v.  Myers 
Schrack  v.  Zubler 
Schrader  v.  Woldin 
Schrunhain  v.  Carter 
Schuler  v.  Hudson 
Schultz  V.  Ariiot 
V.  Lindell 
Schurdel  v.  Schurdel 
Schuyler  v.  Marsh 
Schwerin  v.  M'Kie 
Scisson  V.  M'Lane 
Scott  V.  Crego 

V.  Elliott 

V.  Granger 

V.  Hughes 

V.  Ray 

V.  Rogers 

V.  Seymour 
Scudder  v.  Worster 
Seabury  v.  Field 

V.  Stewart 
Seaman  v.  Luce 
Seamans  v.  Smith 
Searles  v.  Costillo 
Seaton  v.  Son 
Seaver  i'.  Boston 
V.  Dingley 
Secrest  v.  IM'Kenna 
Secrist  V.  Zimmerman 
Sedener  v.  Essex 
Seeley  ik  Brown 
Seger  v.  Barkhamsted 
Seibert  v.  M'Henry 
Seitzinger  v.  Ridgway 
Selch  V.  Jones 
Selkirk  v.  Cobb 
Sellars  v.  Zinmierman 
Sellers  V.  Till 
Selsby  V.  Redlon 
Semayne's 
Semple  v.  Hagar 
Seneca  v.  Auburn 
Seris  v.  Bellocq 
Sevey  v.  Blacklin 
Sevier  i\  Holliday 
Sewairs  V.  Fisk 
Sexton  V.  Nevers 
Seymour  v.  Harvey 
V.  Maddox 


209, 

210 

Shackford  v.  Goodwin 

640 

698, 

599 

Shaddock  v.  Clifton 

466 

405 

Shaddon  v.  Knott 

27 

3,SG 

Shanks  v.  White 

142 

322, 

(il8 

Shannon  v.  Shannon 

1 

371 

Shannonhouse  v.  Bagley 

229 

157 

Sharp  V.  Johnson 

186, 

4()6 

02,  116, 

525 

V.  Mayor 

289, 

502 

75 

V.  Miller 

450 

28 

Shattuck  V.  Stoneham 

415 

524 

Shaw  V.  Boston                   381, 

427, 

687 

162, 

](;3 

V.  Charlestown 

414, 

415 

128 

V.  Cummiskey 

683 

62 

V.  Etheridge 

681 

333 

V.  Nicholay 

190 

171 

V.  Robertson 

503 

491 

V.  Tobias 

124, 

133 

570 

Sheafe  v.  Gerry 

160 

164, 

175 

Sheaffer  v.  Eastman 

215 

654 

Sheahan  v.  Collins 

517, 

519 

174, 

181 

Shearick  v.  Huber 

6 

149 

Sheen  v.  Bumpstead 

412, 

432 

48,  127 

12S 

Sheets  V.  Selden 

148, 

229 

330 

Sheik  IK  M'pjlroy 

170, 

175 

47,  86 

Shelbyville  v.  Shelbyville 

403 

317 

Shepard  v.  Butterfield 

99 

652 

V.  Milwaukee 

647, 

573 

345 

Sheppar  v.  Furniss 

316 

82 

Sheridan  v.  Andrews 

225 

145 

V.  Welch 

160 

141 

185 

Sherman  v.  Dutch 

667 

115 

V.  Fall  River 

686 

665 

412 

V.  Kortright 

428 

173 

V.  M'Keon 

170 

149 

V.  Western 

707 

419 

502 

Sherrod  v.  Langdon 

613 

( 

3,  90 

Sherwood  v.  Sutton 

613 

165 

Shinloub  v.  Ammerman 

232 

228 

Shipman  v.  Baxter 

179 

637 

V.  Clark 

77 

649 

Shore  v.  Smith 

350 

385 

546 

Short  V.  Coulee 

229 

64 

V.  Hubbard 

22 

155 

V.  Tinsley 

463 

305 

Shrewsbury  v.  Smith 

428 

458 

692 

Shroyer  v.  Miller 

429 

320 

Shumway  v.  Cooper 

268 

614 

V.  Phillips 

70 

463 

Shuter  v.  Page 

85 

75 

Sibley  v.  Hoar 

681 

257 

V.  Hulbert 

672 

318 

Silloway  v.  Brown 

59 

652 

Sills  V.  Brown 

422 

135 

Simcoke  v.  Frederick 

30,  83 

336 

Simmons  v.  Bradford          459 

,649 

650 

675 

V.  Brown 

574 

640 

V.  Southeastern 

660 

647 

Simonds  v.  Parker 

80 

235 

Simons  v.  Monier 

417 

INDEX   TO    CASES   CITED. 


liii 


Simpson  v.  Carlcton 

478 

529 

Smith  V.  Miller 

208 

V.  IM'Farland 

30,  85 

,  113 

V.  Milwaukee 

386 

V.  Talbot 

247 

V.  Mitchell 

548 

Simser  v.  Cowan 

75 

V.  Modus 

864 

Sinch  V.  Champion 

266 

V  Mor  gan 

85 

Sinclair  r.  Jackson 

405 

V.  Kew  York 

394,  397 

,  402 

V.  Iloush 

426 

V.  Over  by 

647 

V.  Worthy 

1C7,  202 

225 

V.  Perry 

566 

Sinfrer  v.  Bott 

230 

V.  Powers 

815 

Singleton  v.  Kennedy 

612 

V.  Pretty 

226 

I'.  Pacific 

276 

V.  Sherman 

695 

Sisson  r.  Cleveland 

656 

V.  Smith            349, 

353,  357 

.619 

Sissons  I'.  Dixon 

392 

V.  Snyder 

5 

1,82 

Sitcr  i\  Jewitt 

277 

V.  Taylor 

459 

,  514 

Sitgrcaves  v.  Farmers' 

055 

V.  Thackerah 

556 

Six  Carpenters' 

4 

V.  Tooke 

876 

Skid  more  v.  Taylor 

9 

V.  Wallace 

442 

Skiff  t'.  Cross 

269 

V.  Warner 

645 

Skinner  v.  Stense 

7 

V.  Weage 

363 

V.  Stuart 

258 

V.  Whiting 

135 

Skowhcgan  r.  Cutler 

503 

V.  Wiggin 

181 

Slack  V.  Heath 

122 

V.  Williamson 

28 

Slater  v.  Swann 

270 

V.  Winston 

49 

103 

Slaii<:hter  v.  Detiney 

213 

V.  Woodfine 

705 

Sleeper  r.  Miller 

131 

V.  Woodman 

235 

Small  r.  Hutchiiis 

54 

Smithers  i'.  War  Eagle 

387 

Smallwood  v.  Norton 

129 

Smithwick  i'.  Ward 

507 

618 

Smart  v.  Blanchard 

354,  512, 

518 

Smyth  I".  Carlisle 

198 

Smit  V.  Peojjle 

394 

Snedeker  v.  Quick 

76 

Smith  V.  Ashtbrth 

667 

Sneed  v.  Osborn 

163 

tK  Bryan 

178 

V.  Wegman 

637 

V.  Causey 

243 

V.  Woodward 

215 

V.  Chapin 

183 

Snively  v.  Fahnestock 

598, 

599 

V.  Condry 

579 

Snook  V.  Davis 

84 

V.  Coolbaugh 

29 

Snow  V.  Carruth 

566 

V.  Crockett 

3 

V.  Chatfield 

275 

V.  Dillinfrham 

127 

V.  Halstead 

286 

V.  Downing 

392 

Snowball  v.  Goodricke 

637 

V.  Felt 

263 

Snyder  v.  Vaiix 

10 

V.  Fisher 

l:i3 

Soilleaux  v.  Soilleaux 

641 

V.  Fox 

575 

Soule  V.  White 

655 

V.  Gaffard 

512, 

515 

Sourse  v.  Marshall 

269 

V.  Gage 

169 

South  V.  Foster 

553 

V.  Geortner 

283 

Sonthall  V.  Garner 

81 

V.  Grant 

99 

Southern  v.  Crook 

232 

V.  Harrison 

627 

V.  Hixon 

12 

V.  Hill 

423,  45G, 

532 

I'.  Kendrick 

553 

606 

V.  Hollister 

351, 

354 

Southgate  i'.  Walker 

142 

•  V.  Houston 

97 

Soiithwick  V.  Smith 

34 

V.  Howard 

122 

Spalding  v.  Hallenbeck 

160 

V.  Hiiizar 

655 

Spaulding  v.  Goodspead 

165 

r.  Huntington 

40 

V.  Harvey 

277 

V.  Hyndnian 

624 

V.  Warren 

163 

V.  Lee 

435, 

527 

Spear  v.  Ridiardson 

419 

t'.  I-isher          131, 

132,  27(5, 

366  ' 

S[)ears  v.  Burton 

491 

V.  ]\r(\ann 

148, 

166 

Speer  v.  Hadduck 

160 

V.  M'Fall 

118 

Spence  r.  Spence 

255 

V.  M"Gregor 

117 

Spencer  v.  Dickerson 

132 

V.  M'Lean 

79 

,91 

V.  Godwin 

461 

liv 


INDEX   TO    CASES   CITED. 


Spencer  v.  IM'Gowen 

I'.  Toht'v 
Spigelinover  v.  Walter 
Spikes  V.  Eii<rlisb 
Spitts  V.  Wtjlls 
Spoor  V.  Holland 
Sprague  v.  Clark 

V.  Knceland 
V.  Worcester 
Spring  i\  Bourlaiid 

V.  Haskell 
Spurok  V.  Forsvth 
Spiirlin  V.  Milllkin 
Squier  v.  Plunkctt 
S(piire  ('.  Holk'nbach 
St.  Helen's  v.  Tipping 
St.  John  V.  Eastern 
V.  Northrup 
V.  Pierce 
St.  Louis  IK  Castello 
V.  Dalby 
V.  Risley 
St.  Martin  v  Dcsnoyer 
St.  Paul  V.  Kirby 
St.  Peter's  v.  Beach 
Stacy  V.  Graliani 
Stadlacker  y.  Combs 
Stallings  V.  Corbet 
Stamper  v.  Griffin 
Stancel  v.  Calvert 
Stancell  v.  Pryor 
Stanchdeld  v.  Palmer 
Stanford  v.  Margin 
Stanley  v.  Neale 
Stansbury  v.  Keady 
Stante  v.  Pricket 
Stanton  v.  Seymour 
Stapleford  v.  White 
Starbird  v.  Barrons 
Stark  V.  Brown 
V.  Porter 
Starr  v.  Anderson 
State  V.  Alford 

V.  Baltimore 
V.  Bi'Linncr 
V.  Butterworth 
V.  Davidson 
V.  Davis 
V.  Jean del 
V.  Jennings 
V.  M'Garry 
V.  IM'Gimley 
V.  Patrick 
V.  Sliinborn 
V.  Stringtc'llow 
i\  Trustees 
V.  Ward 
V.  Weston 
V.  \V  i.olebam 


14 

Staton  V.  Commonwealth 

646 

10.5 

Steamer  v.  Cordes 

398 

23,  629 

Stearns  v.  Harris 

202 

614 

Steele  v.  Williams 

341 

194 

Stelfens  v.  Collins 

492 

650 

Stehman  v.  CruU 

145, 

156 

28 

Stein  V.  Burden 

364 

8.5 

Steinbach  v.  Fitzpatrick 

203 

409 

Stella 

391 

40 

Stephens  v.  Felt 

706 

656 

V.  Frazier 

111, 

112 

247 

V.  Leach 

178 

222 

V.  White 

597 

254 

Sterling  v.  Insurance 

2;j8 

562 

Sterrett  v.  Kaster 

552, 

564 

686 

Stetson  V.  Croskey 

610 

389 

V.  Howland 

437 

188 

Stevens  v.  Cunningham 

34 

139 

V.  Dow 

676 

40 

V.  Hauser 

165 

528 

V.  Hurlbut 

282 

146,  216 

V.  Low                   5G6, 

590 

677 

14 

V.  Morse 

212 

546 

V.  Osman 

7. 

5,  76 

681 

V.  Somerindyke 

373 

403 

V.  Tuite 

3 

438,  498 

V.  Wallace 

122 

599 

Stevenson  v.  Greenlee 

610 

165 

V.  Huddleson 

200 

148 

V.  Ritlgely 

68 

351 

Steward  v.  Gromett 

341 

90,  93 

Stewart  v.  Nunemaker 

55 

145 

Stickney  v.  Allen 

592 

30 

V.  Wells 

55 

652 

Stiles  V.  Griffith 

66 

321 

Stille  V.  Jenkins 

572 

343 

Stilhvell  V.  New  York 

455 

7 

Stilman  v.  Squire 

91 

659 

Stimpson  v.  Reynolds 

42 

211 

Stinebaugh  v.  Wisdom 

150 

627 

Stiiison  V.  Ross 

202 

248 

Stirling  v.  Garritee 

590 

597 

470 

Stockwell  V.  Byrne 

127 

688 

V.  Phelps 

10 

234 

Stoddard  v.  Gilman 

88 

264 

V.  Tread  well 

244 

466 

448 

Stoker  v.  Crane 

77 

283 

Stone  V.  Codmau 

680 

354 

V.  De  Puga 

233 

56 

V.  Lewman 

298 

252 

V.  Segur 

453 

385 

V.  Weiser 

611 

7 

Stonesheil'er  v.  Sheble 

661 

410 

Storch  V.  Carr 

220 

145 

Story  V.  O'Dea    75,  103,  118 

121 

381 

145 

Stoiidenmeir  v.  Williamson 

419 

414 

Stoughton  V.  Rappalo 

6 

668 

Stout  V.  Coffin 

245 

474 

Stow  V.  Yarwood 

556 

INDEX   TO    CASES   CITED. 


Iv 


Stowe  V.  Ilcywood  54.'3 

Stowc'll  V.  Lincoln  (iL^9 
Strake  v.  F  11                     193,  246,  lo.O 

IStriitt'ord  v.  Sanford  5((5 

Strattoii  V.  Aik'u  9U 

Streeter  v.  Streiter  280,  5/)6 

Streett  v.  Laiunier  575,  027 

Strickland  r.  Fitzgerald  78 

Strid.llc  V.  San.ni  192 

Strin<ier  t'.  Davis  bU 
Stroebe  v.  Felil                    193,  216,  2r,r) 

Strong  V.  Cotter  I'.t'J 

V.  Place  394 

Struhle  V.  No.lwift  604 

Stuart  V.  Binsse  247 

Sturdy  v.  Jackaway  229 

Sutiblk  V.  Ilaydeu  6:50 

V.  Lowell  2-M) 

Sullivan  v.  Davis  160,  218 

V.  (ioldnian  396 

Sunapee  v.  Eastman  2G5 

Susijuelianna  v.  Finney  9 

Sutter  V.  Jackman  384 

Sutton  V.  M'Leod  146 

Siiydani  v.  Jenkins  99,  589 

Swain  r.  Roys  7 

Swart  111  tut  V.  New  Jersey  546 

Swe  thuid  ('.  Hill  186 

Swill  V.  Barnes  547 
V.  Dickennan  434,  511,  515, 
519,  521,  622,  623 

V.  Gage  179 

Swigcrt  V.  (iiaham  270 

Swindell  V.  Warden  409 

Swine  V.  Lea(;h  662 

Swinney  v.  Nane  353 

Swir    V.  Leacli  655 

Swope  ('.  Fair  286 

Symes  v.  Oliver  54K 

V.  Tueker  592 


T. 


Taber  v.  Ilutson 
Taggart  v.  Hart 
Tainter  v.  Henienway 
TalbiJt  V.  De  Forest 
Taliafciro  t\  I'eyer 
T.  Ivaiide  I'.  Cripps 
Tains  V.  Lewis 
Tancred  v.  Allgood 
Tanner  v.  Hillings 
Tapley  v.  Tapley 
Tappan  v.  Tap[)an 
Tarbell  v.  Central 
Tarlcton  v.  M'GauIey 
Tarlington  v.  Spencer 
Tarver  v.  Smith 


603 
2 

19U 

70 

217 

59,  63 

502 

389 

253 

503 

143,  175,  196,  211 

705 

277.  571 

7(15 


190,  196 


Tate  r.  Sliackleford 

263 

Ta  lor  IK  Abbott 

184,  224 

V.  Blake 

23 

V.  Car|)enter 

607 

V.  Collier 

656 

r.  Eastwood 

413 

V.  Grand 

442 

V.  Hardin 

58 

V.  Horsey 

429 

V.  .Jenkins 

29 

V.  Jones 

704 

V.  Ketelium 

648 

V.  j\Iagnire 

657 

V.  Moiniot 

427 

V.  Moran 

611 

V.  Kid.ile 

94 

Tayon  v.  Ladcw 

186 

Teagarden  v.  Iletfield 

596 

Teall  c.  Barton 

419,  481 

Tebbetts  c.  Estes 

162,  l(i7 

Tedd  V.  Douglas 

707 

Teti't  V.  Marsh 

396 

V.  Windsor 

524 

Tegarden  v.  Carpenter 

213 

Teller  v.  Xorthern 

686 

Tell  V.  Beyer 

38 

Tenison  v.  Martin 

251 

Terre  v.  Augustus 

382 

i'.  Vanatta 

632 

Terrell  v.  ]\I"Kinny 

705 

Terry  v.  New  York 

666 

Thaeker  v.  Phiniiey 

266 

Thayer  v.  Davis 

422 

V.  Turner 

65 

Thien  v.  Voegtlander 

237 

Thoni  V.  Bigland 

287 

Thoniae  i'.  Zushlag 

703 

Thomas  v.  Dunaway 

355,  516 

V.  Maddan 

457,  467 

V.  jNIarsh 

506 

V.  SpolFord 

114,  129,  132 

i\  Sternlieimer 

584 

V.  Waterman 

671 

V.  Watkins 

889 

V.  Wheeler 

468 

V.  Willson 

129 

Thompson  v.  Adams 

192 

t'.  Bowie 

475 

V.  Button 

42,  96 

r.  Clark 

256 

V.  Fellows 

251 

V.  Hall 

426 

V.  Herring 

466 

V.  Lyon 

148 

V.  M'Kinley 

153,  224 

V.  Moore 

363 

i;.  Reed 

230 

V.  Richards 

188,  457 

V.  Slade 

229 

Ivi 


INDEX   TO    CASES   CITED. 


Thonijjson  v.  Thompson 
V.  Tonikinson 
V.  AV^harton 
Tliomson  v.  Cross 

r.  Sliattuck 
Thorne  r.  California 
Tliornhill  v.  i\Ianning 
Thornton  r.  Hoyden 
Thorpe  r.  Balvett 

V.  Burroughs 
Thrall  v.  SniiUiy 

V.  Wright 
Thurmaii  r.  Anderson 
Tibeau  r.  Til)eau 
Tibbs  r.  Brown 
Tighe  r.  Cooper 
Tilley  IK  Hudson 
Tillinghai^t  l\  Ilolbrook 
TiUman  l\  Davis 
Tillmes  v.  Marsh 
Tillotson  V.  Cheatham 
Tilson  I'.  Clark 
Times  i'.  Hawk 
Tindall  v.  Baskett 

V.  Murphy 
Tinney  v.  Wolston 
Tinsley  v.  Tinsley 
Tisdale  v.  Connecticut 
Tobin  V.  Shaw 
Tobine  i'.  Dean 
Todd  V.  Austin 

V.  Zaohary 
Toledo  V.  Arnold 

V.  Bevin 

V.  Daniels 

V.  Fowler 

V.  Goddard 

V.  Lunch 

V.  ArClannon 

V.  Smith 
Tomlinson  v.  Collins 
v..  Darnall 
Tompkins  v.  Williams    ' 
Torrance  v.  Betsey 
Toule  V.  Urquhart 
Tousey  v.  Bisliop 
Town  V.  Farrell 
Townsend  v.  Bon  well 
V.  Downer 
V.  Newell 
Tozier  v.  Merriam 
Tracy  v.  Atherton 

V.  Xew  York 
Traer  v.  Filkins 
Tramell  v.  Adam 
Traphagen  v.  Traphagen 
Trapnall  v.  Hattier 
V.  Merrick 
Trask  v.  Hartford 


281 

Travis  v.  Barger 

276,  441 

188 

Treanor  v.  Donahoe 

705 

394 

Treat  v.  Barber 

600,  702 

80 

V.  lieilly 

194,  198 

630 

Tripner  v.  Abrahams 

211,  212 

430 

Tripp  V.  Leland 

44 

226 

Trout  I'.  Kennedy 

565 

208 

True  V.  Triplett 

280 

624 

Truitt  V.  llevill 

85,  99 

461 

Trullinger  v.  AVebb 

490 

354 

Trustees  r.  Rowell 

232 

274 

Tuck  V.  Moses    108,  114, 

115,  119, 130 

150 

Tucker  v.  Frederick 

409 

152 

V.  Newman 

664 

518 

V.  Phillips 

180,  194 

357 

Tuley  V.  Mauzey 

111 

677,  678 

,  689 

Tullidge  V    Wade 

616,  706 

671 

Tulloch  V.  Wori-all 

200 

534 

Tully  V.  Harloe 

93 

163 

,  181 

Tunimons  i'.  Ogle 

133 

600 

601 

Tupling  V.  Ward 

524 

356 

Turner  v.  Alridge 

144 

243 

V.  Brooks 

262 

501 

V.  Cool 

94 

537 

V.  First 

283 

396 

V.  Hardcastle 

677 

559 

V.  North 

705 

401 

V.  Reynolds 

146,  181,  204 

505 

V.  Waldo 

327 

265 

Turney  v.  Chamberlain 

145,  179 

272 

Turrill  v.  Michigan 

408 

173 

Tustin  V.  Faught 

147,  161 

606 

Twigg  V.  Potts 

312 

239 

Twinan  v.  Swart 

102 

283 

381 

Twiss  V.  Baldwin 

496 

236 

Twombly  v.  Leach 

510 

443 

Tyler  v.  Freeman 

64 

285 

V.  Mather 

362 

247 

V.  Pomeroy 

575 

425, 

548 

V.  Willis 

659 

28 

Tyrrell  v.  Lockhart 

699 

324 

153 

186 

232 

119 

u. 

82 

423 

Ulrich  V.  M'Cabe 

405 

147,  157, 

217 

Underbill  v.  New  York 

249 

49 

Underwood  v.  Tatham 

93 

263 

V.  White 

28,  110 

181 

Undies  v.  Morrell 

279 

5 

Union  V.  Baldenwick 

391 

638 

V.  Crary 

406,  526 

576 

V.  Mott 

2  6 

151, 

152 

United  States  v.  Kennan 

33 

4 

V.  Wenger 

410 

255 

Usher  v.  Pride 

188 

634 

Usry  V.  Rainwater 

59 

INDEX   TO    CASES   CITED. 


Ivii 


V. 


22,  85, 


268,  415, 


Vaiden  v.  Bell 
Vail  V.  Ilalton 
Valieri  v.  Hoy  land 
Valle  )'.  ("cne's 
Van  Al.stiiu'  v.  IM'Carty 
Van  Ainiin<:;t;  c.  Baniett 
Van  Buren  v.  C'ockburn 
Van  Deiisfn  v.  Young 
Van  Duscn  v.  Ponieroy 
Van  Duyne  c.  Coope 
Van  Fo.s,st'n  c.  Pearson 
Van  Oiinan  r.  SpalFord 
Van  l\'lt  L\  Littk-r 
Van  Kenstiulaer  v.  Owen 

V.  Vickery 
V.  Whitbeck 
Van  Sliaick  v.  Trotter 
Van  Slvku  r.  Carpenter 
Van  Valkeiihurgh  v.  Huff 
Van  ^'liet  v.  Olih 
Van  ■\Viiikie  v.  United  States 
Vance  v.  Olinger 

V.  Sniiih 

V.  Vanarsdale 
Vandenl)ur<ih  <••  Van  Valkenburgh 


Vandevoort  v.  Gould 
Varril  v.  Heald 
Vaugban  v.  Everts 
V.  Raleigh 
r.  ^^'arnell 
r.  Webster 
Vausse  r.  Rusnell 
Veazie  i\  Sonierby 
Vedder  v.  llildreth 
Vennuni  v.  ihunipson 
Verry  v.  Small 
Viokery  v.  Sherburne 
Vieksburg  v.  Patten 
Victory  v.  Stroud 
Vincent  i'.  J^aves 
Vining  v.  Baker 
Volkenburgli  c.  Rahway 
Vosburgh  V.  Welch 
Vowles  V.  ^Miller 
Vroonian  v.  King 

V.  Shepherd 


w. 

Wachter  i\  Quenzcr 
Wade  V.  CiialFee 
WadK'V  V.  Harris 
Wadsworth  v.  Harrison 


301, 


118 
213 
501 

44 
192 
264 

93 
416 
651 
132 
223 
151 
640 
187 
317 
226 
699 
351 
199 
228 
656 
213 
465 
642 

77 
576 
645 
255 
433 
639 
570 

10 
101) 
582 
461 
82 
81 
429 
192 
403 
396 
184 
667 
497 
467 
165 


357,  521 

343 

73 

458 


93, 


WaggslafTi'.  Ashton  351,  356 

Wagoner  v.  North  Carolina  253 

Waite  I',  (iilbert  658 

Wakeley  v.  Delajjlaine  228 

Wakelin  v.  ^lorns  655 

Wakley  i'.  Froggatt  309 

Walliridge  o.  Shaw  113 

Walcott  V.  Holconib  697 

Walker  v.  Armour  210 

V.  Borland  643 

V.  Hitchcock  306 

I'.  Mitchell  218 

V.  Swasey  308 

V.  West  lord  480 

V.  Williams  185 

V.  Wilmarth  642 

V.  Wilson  600 

Wall  V.  Bufl'alo  277 

V.  Spindler  172 

Wallace  v.  Brown  38 

v.  (ioodall  672 

V.  Wilcox  468 

Wallen  v.  HulF  1<J2 
Walpole  V.  Smith                      28,  52,  81 

Walrod  v.  Bennett  267 
Walter  v.  Loekwood                   '          204 

Walters  v.  Ciiinn  332 

V.  'Sla.ve  496 

Wahhcr  r.  Warner  397 

Waltman  v.  Allison  23 

Walworth  v.  Abel  699 

Waples  V.  Burton  617 
V.  M'llvaine                   124,  136 

War  Eajile  v.  Nutting  387 

Ward  c.  Bartlett  274 

I'.  Haws  617 

V.  Henry  661 

V.  Xeal  368 

V.  Taylor  53 

Wardlaw  r.  Hammond  465 

Wardrobe  r.  Stage  654 

Ware  V.  Brookhouse  449 
Warfield  v.  Lindell                     200,  437 

Warner  v.  Aughenbangh  98 

V.  Cushman  46 

r.  Henby  165 

V.  ^Matthews  27 

V.  New  York  475 

V.  Ostrander  644 

V.  Sauk  115 

V.  Scott  470 
Warren  v.  Cole          547,  688,  613,  680 

V.  Crew  155 

i\  Leland  30 

Washabaugh  i\  Entriken  218 

Wa^hin<:t()n  r.  Eames  282 

Water  Commissioners  629 

Waterman  v.  ^latteson  11 


h 


INDEX    TO    CASES    CITED. 


Waterman  ?'.  Robertson 
AVaters  r.  Bates 

V.  Laiijidon 
V.  AVaters 
"Watkins  r.  Wliite 
A\'atrit;s  l\  Pierce 
Watry  v.  Ferber 
i\  lliltjieii 
Watson  t'.  Anihergate 
V.  Bi.ssell 
V.  Cliesire 
V.  Cbritiiie 
V.  Dowling 
V.  Tindall 
V.  Watson 
V.  Zinin>erman 
Watt  V.  Potter 
Watts  V.  White 
Weall  V.  King 
Weaver  v.  Alabama 
V.  Aufuur 
V.  Darliy 
V.  Lawience 
Webb  V.  Hendrick 
V.  Kelly 
V.  Ross 
Webber  v.  Eastern 
V.  Liversuch 
V.  Roddis 
V.  Shearman 
Webber's  v.  Underbill 
Weber  v.  Coussy 
V.  Henry 
Webre  v.  Gaillard 
Webster  v.  Hill 
V.  Price 
I'.  Webster 
Weed  V.  Bibbins         350, 
V.  Hill 
V.  M'Guire 
Weeding  v.  Mason 
Weeks  v.  Barron 
V.  Sparke 
Weinrich  v.  Porter 
Weisbrod  v.  Chicago 
Welch  V.  Nash 

i\  Northeast 
i\  Sullivan 
V.  Whittemore 
Weld  V.  Bartlett 

V.  Locke 
Wells  V.  Head 

V.  Jackson 
V.  Reynolds 
V.  Sawyer 
WMton  r.  Pacific 
Wendell  v.  Abbott 
IK  Mayor 
Wentworth  v.  Pratt 


30,47 

Wentworth  v.  Remick 

196 

loo 

Wernke  v.  Haren 

220 

i>n 

Wespole  V.  Smith 

27 

155 

Wesson  V.  Waslibiirn 

425, 

453 

30 

West  V.  American 

255, 

278 

281 

V.  Anderson 

588 

407 

V.  Chase 

415 

423 

V.  Forrest 

616 

626 

V.  Hannibal 

383 

465 

V.  Rice 

551 

649 

504 

V.  Rousseau 

324 

321 

V.  Wentworth 

589 

192,  193 

Western  v.  Carlton 

550 

189 

Westiall  V.  Dungan 

558 

21,  22 

Weston  V.  Clark 

167 

204 

V.  Grand 

656 

570 

V.  Higgins 

402 

298 

Wetherbee  v.  Marsh 

516 

497 

Wetherell  v.  Hughes 

534 

426,  2/.8 

Wetzell  V.  Waters 

551 

o^i-i 

Weymouth .f.  Chicago 

593 

30 

Whaling  v.  Shales 

124 

6 

Wheaton  v.  Catterlin 

89,  96 

348,  515 

Wheeler  v.  Allen 

12 

454,  461 

V.  Framingham 

442 

496 

V.  Hambright 

537 

485 

V.  RPCorristeu 

49 

323 

V.  Train 

28 

299 

V.  Winn 

165 

22,25 

Wheelock  v.  Cozzens 

22 

63 

Whipple  V.  Cumberland 

554 

228 

V.  Thayer 

30 

102 

Whitaker  v.  Sumner 

641 

244 

Whitbeck  v.  New  York 

590 

145 

Whitiher  v.  Shattuck 

69 

118 

White  V.  Ballou 

426 

155,  191 

V.  Brown 

90 

351,  512, 520 

V.  Chadbourne 

503 

54 

V.  Dinkins 

461 

197 

V.  Dow 

325 

707 

V.  Evans 

147 

440,  443 

V.  Mosely 

572 

484 

V.  Van  Kirk 

492 

465 

V.  Watkins 

288 

182 

V.  Webb 

662 

,  669 

306 

V.  Woodruff 

203 

680 

V.  Wyley 

624 

220 

Whitehall  v.  Smith 

279 

317 

Whitehead  v.  Foley 

157 

646,  639 

V.  Root 

289 

300 

V.  Varnum 

647 

405 

Whitehouse  v.  Androscoggin 

635 

164,  180 

Whitesides  v.  Collier 

61 

699,  700 

Whitfield  V.  Westbrook 

625 

705 

V.  Whitfield      423, 

437, 

469, 

383 

548 

432,  441 

Whiting  V.  Johnson 

624 

420 

Whitman  v.  Boston           415, 

484, 

560, 

364 

571 

INDEX   TO    CASES   CITED. 


lix 


Whitney  v.  Allaire 

V.  Krown 

V.  Fieiicli 

V.  Ilitclicock 

('.  IjL'liiiiur 
Whitteinoru  o.  iJoiies 
r.  Ware 
Whittier  v   Franklin 
Whitton  r.  (Joddard  258, 

Whitwortli  ('.  Humphries 
Wible  r.  Wible 
Wickershain  r.  Reeves 
Wifks  V.  M'Xauiara 
Wier  IK  Covell 
Wiji^^in  V.  l^luiner 
Wike  V.  LijrI'tner 
Wilboni  V.  Odell 
Wilbur  r.  Ueeciier 
V.  Hrown 
V.  Flood 
Wilcoxon  ('.  Annesley 
Wilde  V.  Hixter 
Wile  V.  Sweeny 
Wilkcrson  r.  Moulder 
Wilkins  r.  (iilmore 
Wilkinson  v.  Moseley      283, 

V.  Pearson 
Wilklow  V.  iiane 
Willard  i\  Kimball 


Willfv  ('. 
AVilliams 


rurtsniouth 


V.  Beede 
V.  Birch 
V.  Bramble 
V.  Cash 
V.  East 
V.  (Jilraan 
V.  Hall 
V.  Hartshorn 
V.  lluhnes 
V.  Keyser 
V.  Newberry 
V.  Pliclps 
V.  lleil 
V.  Smith 
V.  Welch 
I'.  West 
V.  Williams 
Willis  V.  Ilavemeyer 
('.  (juiml)y 
V.  Wozencraft 
Wills  V.  Barrister 
Willson  V.  ('leavciand 
Wilson  V.  Carne<rie 
V.  Coffin 
V.  Corbier 
V.  Gray 
V.  Guthrie 


186, 


GG8 

Wilson 

V.  Hillhonse 

106 

425 

V.  liinsley 

486 

172 

V.  Howard 

303 

617 

V.  ]\l:lttlli'WS 

584,  681 

128,  29'J 

V.  Mclvin 

395 

119 

r.  Middlcton 

602 

;m« 

V.  Newlan 

613 

417,  431 

I'.  Newport 

697 

2G0,  21)1) 

I'.  Nichols 

71 

18.S 

t'.  Palmer 

165.  171 

141 

I'.  Royston 

28,  SI 

535 

V.  Rybalt 

12 

330 

r.  Spring 

634 

626 

V.  Stripe 

41 

451 

V.  Thompson 

283 

23 

V.  Williams 

74,  117 

614 

Wilton  V.  Webster 

541 

631 

Winan 

s  V.  Brooklicld 

628 

305 

V.  Christy 

171,  181 

75 

V.  Winans 

395 

77,96 

Winch 

ester  o.  Charter 

216 

607 

Windl 

am  V.  Chishohn 

141 

166 

Winds 

or  V.  Boyce 

91 

16  + 

V.  Rliame 

601 

598,  600 

Wingate  v.  Brooks 

124 

284,  335, 

V.  Mi-chanics' 

250 

447 

Winkl 

ev  V.  Kaime 

403 

220 

Winnard  v.  Foster 

40 

181 

Winnt 

v.  Pond 

233 

43 

Winona  i-.  Hu(F 

182 

250 

Winsl 

jw  V.  Leonard 

34 

5 

Winstown  v.  Willis 

270 

97 

Winter  v.  Stevens 

194,  200 

295 

V.  Peterson 

488,  602 

320 

V.  Wroot 

541 

185 

Wiswall  V.  First 

659 

392 

Witham  v.  Withara 

111 

615 

Withe 

rs  y.  Greene 

615 

641 

V.  Steamboat 

44;5 

145 

Wittei 

•  V.  Fisher 

107 

272 

Witse 

1   C.    RljrgS 

675 

439 

Wogli 

Lin  r.  Cowpcrthwaite 

16 

486.  608 

VVolcott  i\  Mead 

74.  SO 

676,  584 

r.  Root 

376 

600 

Wolff.  Blue 

114 

23 

Wood 

V.  Barker                  451 

599,  643 

12,  82 

t'.  Braynard 

100,  12S 

27 

V.  Cheshire 

2l'.S 

541,  702 

V.  Hicks 

467 

344 

V.  Jones 

513 

419 

V.  M'Guire     146,  175, 

186,  195, 

156 

197 

29 

1'.  Mears 

3:<3 

187,  207 

t'.  Orser 

28,  97 

459 

V.  Preseott 

3n9 

331 

V.  Richardson 

366 

179 

V.  Sanl()rd 

169 

77 

V.  Truckee 

181 

197 

V.  Willard 

176,  432 

Ix 


INDEX   TO    CASES   CITED. 


Woodlnirn  v.  Co<;dal 

103 

Woodier  v.  Great 

660 

Wdodliam  V.  (Telston 

567, 

583 

AVoodman  v.  Smith 

IGO 

Woodrud'  ('.  Cook 

77 

AVoods  V.  N.  M.  Co. 

694 

V.  Nixon 

29 

V.  Varnum 

641 

Woodward  v.  Gates 

412 

V.  Grand 

7 

V.  I'lirdy 

558 

Woodwell  V.  Brown 

445 

V.  Fulton 

145 

158 

Woodworth  r.  Kuowlton 

252 

280 

Wooleott  V.  Gray 

641 

Worden  i'.  Powers 

453 

Worsley  i'.  Johnson 

164 

184 

V.  South 

384 

Wortham  v.  Cherry 

146 

Wright  V.  Armstrong 

3 

V.  Bennett 

60 

V.  Carter 

181 

V.  Dunham 

208 

V.  Hardy 

420 

V.  Hazen 

875 

V.  Indianapolis 

239 

V.  Matthews 

108 

V.  ]\rKee 

887, 

429 

V.  New  York 

483 

V.  Quirk 

125, 

129 

V.  Self 

505 

N  V.  Tatham 

446 

V.  Williams 

84 

V.  AVilson 

158 

Wyckoffw.  Carr 

463 

Wylie  V.  Smitherman 

581, 

600 

Wyman  v.  Brown 

207, 

213 

Yabsley  v.  Doble 

Ya<:er  v.  Larson 

Yantes  v.  Bmditt 

Yater  v.  Mullen 

Yates  V.  Alden 
V.  Fassett 

Yeager  v.  AVallace 

Yeaiy  v.  Fink 

Yin^ling  v.  Hoppe 

York  V.  Allen 

You  V.  Flinn 

Young  V.  Adams 
V.  Davis 
V.  Foster 
V.  Kimball 
V.  Mertens 
V.  Miles 
V.  ]\Iontgomery 
V.  Perry 
V.  Power 
V.  Rummell 
V.  Tarbell 
V.  Willet 

Yount  V.  Howell 

Yrisarri  v.  Clement 

Yundt  V.  Hartrunft 


z. 

Zat'hrisson  v.  Ahman 
Zeigler  v.  Wells 
Zemp  V.  AVilmington 
Zimmerman  v.  Union 


532,  537 
194 
104 
690 
240 
114 
264 
638 
377 
160 
152 
460 
376 
553 
72 
602 
60 
152 
183 
429 
306 
211 
99,  101 
220 
614 
694 


3,  7,  93 

248,  253,  656 

437 

571 


THE  LAW   OF  REMEDIES  FOR  TORTS, 


PRIYATE    WRONGS. 


BOOK    I. 

REPLEVIN. 

CHAPTER   I. 


GENERAL  NATURE  AND  OBJECTS  OF  THE  ACTION. 

1.  Definition  and  general  nature  of  the  ertj';  — things  pertaining  to  the  realty; 
action.  chcses  in  aciion. 

2.  Delivery  of  the  goods  to  the  plaintiff.  14.  A  local  action. 

3.  Tortious  taking,  whether  necessary—  16.  In  what  courts 

cejHt  and  (Ictinet;  practice  in  different  States.  17.  Successive  replevins  of  the  same  prop- 

11.  Lies,  in  general,  only  for  personal  prop-    erty. 

§  1.  The  action  of  replevin  is  thus  described  by  an  elementary 
writer  of  authority  :  By  replevin,  the  owner  of  goods  unjustly 
taken  and  detained  from  him  may  regain  possession  through  the 
medium  of,  and  upon  application  to,  the  sheriff,  upon  giving  him 
security  to  prosecute  an  action  against  the  person  who  seized,  (a) 
It  is  principally  used  in  cases  of  distress ;  but  it  seems  that  it 
may  be  brought  in  any  case  where  the  owner  has  goods  taken 
from  him.i  And  the  action  is  said  to  be  founded  on  a  taking, 
and  the  right  which  the  party  from  whom  the  goods  are  taken  has 
to  have  them  restored  to  him,  until  the  question  of  title  to  the 
goods  is  determined.^  (6)     The  following  remarks  in  a  very  late 

1  3    Steph.   N.   p.   2482;    1    Chit.    PI.  -  Per    Lord    Redesdalc,    Shannon    v. 

162.      See    Hcrdic   v.   Young,   55  Penn.     Shannon,  1  Sch.  &  L.  327. 
176. 

{a)  A  writ  of  replevin  does  not  authorize  ujjon  the  statute  of  Marlbridge,  52  Hen. 

the    officer    to   take  from   the  defimhiut's  III.  c.  21.     Seel  Ld.  Hay.  279;  Evans  r. 

person   an    article   of  personal   ornament,  Brander,  2  H.  Bl.  55().     In  this  country, 

though  worn  solely  to  keep  it  beyond  tlie  as  will  be  seen,  replevin  is  regulated,  and 

reach  of  process.     Maxhain   v.   Day,   16  very  variously  modified,  by  local  statutes. 

Gray,  213.  One  cannot  maintain  an  action  for  claim, 

(b)  The  process  in  England  is  founded  and  delivery   (a  substitute   for   replevin) 


2  REPLEVIN.  [BOOK    I. 

case  further  illustrate  the  peculiar  nature  of  the  action:  ''It 
is  sometimes  said  that  each  party  is  an  actor  or  plaintiff.  It  is 
substantially  in  the  nature  of  a  proceeding  in  rem :  the  question 
litigated  is,  whether  the  plaintiff  is  entitled  to  keep  the  property 
which  he  has  taken  from  the  defendant,  or  is  bound  to  return  it 
to  him  with  damages  for  having  intermeddled  with  it.  The  prop- 
erty in  dispute  may  be  said  to  be  in  the  mean  time  in  the  custody 
of  the  law  ;  that  is  to  say,  it  is  represented  by  the  bond,  which 
imports  that  it  is  held  by  the  plaintiff  to  abide  the  event  of  the 
suit,  and  to  be  disposed  of  accordingly.  If  the  plaintiff  prevails, 
the  result  of  the  suit  is  that,  in  the  judgment  of  the  court,  the 
property  belonged  to  him ;  and  that  he  did  right  in  taking  it ; 
and  may  lawfully  continue  to  keep  it,  and  dispose  of  it  according 
to  his  pleasure.  As  the  prevailing  party,  he  would  in  that  event 
recover  damages  and  costs.  The  value  of  the  goods  would  not 
make  a  part  of  his  damages ;  for  the  reason  that,  from  the  com- 
mencement of  the  suit,  he  has  had  the  property  in  his  own  hands, 
and  is  now  adjudged  to  be  the  rightful  owner.  In  most  cases,  his 
damages  are  but  nominal  and  constructive.  On  the  other  hand, 
if  the  defendant  .  .  .  should  be  the  prevailing  party  (except  in 
cases  in  which  he  prevails  merely  on  the  ground  of  some  techni- 
cal informality  .  .  .  ),  the  legitimate  inference  would  be,  that  the 
property  belonged  to  him ;  or  at  least  that  the  plaintiff  had  no 
right  to  it,  and  by  interfering  with  it  was  guilty  of  a  violation 
of  the  defendant's  right ;  and  that  the  latter  is  entitled  to  have 


without  observing  all  the  (N.  C.)  statu-  and  judgment  in  replevin  is  rendered 
tory  requirements.  Hirsh  v.  Whitehead,  against  him  ;  he  cannot  satisfy  such  judg- 
65  N.  C.  516.  It  is  held  that  a  plaintiff  ment  by  giving  up  the  goods  and  paying 
in  replevin  is  bound  by  the  same  rule  the  damages  assessed  for  the  taking  and 
with  other  plaintiffs,  when  similarly  detention.  Retorno  hubeiido  has  no  exist- 
situated.  Rodericks  v.  Payne,  1  McC.  ence,  except  where  the  goods  have  been 
407.  The  action  is  held  not  to  involve  a  replevied,  and  the  verdict  is  for  the  de- 
prohibition  to  inferior  tribunals.  Lynah  fendant.  Hence,  it  is  no  ground  of  error, 
V.  Commis.,  Harp.  336  ;  Gist  v.  Cole,  2  that  the  verdict  did  not  sever  the  damages 
N.  &  M'C.  456.  In  Pennsylvania,  as  given  for  the  value  from  those  given  for 
niodiiied  by  statute,  replevin  seems  to  the  tortious  taking.  Schofield  v.  Ferrers, 
be  an  action  for  damages.  Thus,  where  46  Penn.  438.  In  Vermont,  it  has  been 
the  taking  was  accompanied  with  wrong  held  that  replevin  does  not  lie  except 
and  outrage,  tlie  plaintiff  may  recover  under  the  statute.  Miller  v.  Warner, 
damagesbeyondthe  value  of  the  property,  Brayt.  168.  Not  to  try  title.  Taggart 
without  allegations  of  special  damage,  or  i\  Hart,  ib.  215.  Replevin  is  not  super- 
of  such  aggravating  circumstances.  Other-  seded,  in  Indiana,  by  the  remedy  for  trial 
wise,  with  consequential  damages,  not  of  the  right  of  property'.  (2  Rev.  Sts. 
necessarily  or  naturally  resulting  from  the  c.  5,  p.  493).  Firestone  v.  Mishler,  18 
tortious  act.  Schofield  v.  Ferrers,  46  Penn.  Ind.  439.  In  Kentucky,  replevin  does 
438.  Where  goods  are  not  replevied,  not  lie  where  property  is  held  adversely, 
(restored)  but  detained  by  the  defendant,  Dillon  v.  Wright,  7  J.  J.  Mar.  10. 


CH.    I.] 


GENERAL   NATURE    AND   OBJECTS   OF   THE    ACTION. 


it  restored  to  hira,  and  also  is  entitled  to  .  .  .  damages  for  .  .  . 
taking  it.  Tlio  judgment,  as  ordinarily  made  up  in  such  case, 
assumes  that  the  plaintiff",  in  compliance  with  the  order  of  the 
court,  will  return  the  property;  or  that  the  sheriff  ( if  he  should 
refuse  so  to  do)  will  take  it  from  him,  and  return  it  to  the  defend- 
ant ;  and  that  the  pecuniary  loss  and  general  inconvenience 
which  the  wrongful  act  of  the  plaintiff  has  occasioned  .  .  .  are 
to  be  covered  by  the  judgment  for  damages."  ^ 

§  2.  As  we  have  seen,  the  action  of  replevin  contemplates 
delivery,  in  the  first  instance,  to  the  plaintiff.  It  is  held,  that 
symbolical  delivery  to  the  plaintiff  is  not  sufficient  without  his 
consent,  which  is  a  question  for  the  jury.  A  return,  that  the 
goods  were  replevied  and  delivered,  is  primd  facie  evidence  of 
delivery.^  (a) 

§  3.  The  restricted  propositions  are  sometimes  found,  that 
replevin  lies  for  any  tortiouH  or  unlawful  talcing  of  goods,  and 
not  merely  in  cases  of  a  distress.^  (See  c.  2.)  That  replevin 
in  the  detinet  may  be  brought  when  the  taking  was  tortious  ;  and 
that  form  of  action  does  not  admit  the  original  possession  of  the 
defendant  to  have  been  lawful.*  That  at  common  law  replevin 
lies  only  where  there  has  been  a  tortious  taking;  and  where, 
under  a  statute,  replevin  is  brought  for  an   unlawful   detention 


I  Per  Ames,  J.,  Stevens  v.  Tuite,  104 
Mass.  332. 

^  Haye.s  v.  Lusby,  5  Har.  &  J.  485. 

"*  ranj^burn  v.  ratrid^e,  7  Johns.  140  ; 
Evans  v.  Brander,  '2  II.  BI.  541;  Cum- 
min}j:s  V.  M'Gili,  2  Tayl.  08  ;  Dnimniond  v. 
Hopper,  4  Marring.  327  ;  Hector  v.  Clieva- 
lier,  1  Mis.  345;  Wright  v.  Armstrong, 
Bre.  130;  Vaiden  v.  Bell,  3  Rand.  448; 


Dickson  v.  Mathers,  1  Hemp.  05 ;  Gallo- 
way V.  Bird,  12  Moo.  547  ;  4  Bing.  2U9 ; 
Pangburn  v.  Patridge,  7  Johns.  140  ;  Hop- 
kins V.  Hopkins,  10  ib.  373;  Boulton  v. 
Thompson,  14  ib.  87  ;  Bruce  t\  Ogden,  6 
Ilalst.  370.  See  Smith  v.  Crockett,  Minor, 
277. 

•*  Zaclirisson  v.  Ahman,  2  Sandf.  68. 


(<i)  In  Pennsylvania,  mere  delivery 
to  the  plaintiff  does  not  tend  to  jirove 
property  in  him.  Lovett  v.  Biirkhar<lt, 
44  Penn.  173.  See  p.  15.  Hence  wliere, 
in  replevin  brought  against  two,  for 
a  boat,  the  defendants  pleaded  spe- 
cially that  one  of  them  had  before 
brought  replevin  against  the  same  jilain- 
tiff  for  the  same  boat,  and  that  the 
sherifl'  had  replevied  it ;  the  record  of 
the  first  action,  consisting  of  the  writ 
and  the  slieritf's  return,  is  not  admissil)ie 
evidence  ;  and  the  i)!ea  is  iirojieriy  struck 
off.  ouTnotion.as  tendering  an  impertinent 
issue.  Ib.  In  Peimsylvania,  the  plaintiff  is 
entitled  to  rcscover,  altliough  the  siieriff  is 
prevented  by  the  defentlant  from  replevy- 


ing the  property  anil  delivering  it  to  the 
plaintiff.  But  judgment  rendereil  only 
for  the  property  actually  replevied  will, 
while  unreversed,  be  a  bar  to  an  action  of 
trover  for  the  value  of  the  rest.  Bower 
)'.  Tallman,  5  W.  &  S.  55t').  In  Massa- 
cliusetts,  a  defendant  in  repleviu,  who 
has  prevented  the  officer  from  delivering 
the  ])roperty  to  the  plaintiff  by  himself 
attaching  it,  cannot  object  to  the  prosecu- 
tion of  tlie  replevin  on  tiie  grouml  of 
such  non-cK'livery.  Ponu-roy  >•.  Trinqjer, 
8  Allen.  3'.i8.  In  Michigan,  replevin  does 
not  lie.  if  the  goods  are  in  the  plaintifT's 
j)ossession,  thougli  an  officer  claims  tlieni 
bv  a  levy.  Hickey  v.  Hinsdale,  12  Mich. 
99. 


REPLEVIN. 


[book  I. 


simjily,  tlio  plaintiff  must  strictly  follow  the  statute.^  (a)  Hence 
"where  the  slave  of  A,  a  resident  of  New  Orleans,  ran  away,  and 
was  afterwards  sold  at  auction  in  Natchez,  and  bought  by  B,  who 
sent  him  to  Little  Rock,  and  sold  him  afterwards  to  0,  who  had 
no  knowledge  of  A's  title ;  it  was  held  that  A  could  not  main- 
tain replevin  against  C  for  unlawfully  detaining  the  slave.  So 
a  person  receiving  property,  knowing  it  to  have  been  obtained 
by  a  trespass,  is  held  not  liable  to  an  action  of  replevin.^ 

§  4.  The  same  rule  is  sometimes  expressed  by  the  proposition, 
that  "  in  general,  when  trespass  will  lie,  replevin  will  also  ;  "  "  or 
in  all  cases  where  trespass  lies.  **  (&) 

§  5.  But,  even  upon  this  restricted  view  of  the  remedy  in 
question,  it  is  held  that  an  unlaiofid  intermeddling  with,  or  an 
€xe7'cise  or  claim  of  do7ninion  over,  property,  Avithout  authority  or 
right,  will  render  the  party  liable  to  trespass  or  replevin.^  So  a 
taking,  under  color  of  a  contract  with  a  drunken  bailee,  may  be 
regarded  as  a  tortious  taking  ;  ^  or  obtaining  goods  by  fraudulent 
pretences  ;  and   replevin   will  lie  for  them   without   a  demand.'' 


1  Dame  v.  Dame,  43  N.  H.  37  ;  Trapnall 
I'.  Hattier,  1  Eng.  18;  Drummond  v. 
Hopper,  4  Harring.  327.  See  Johnson  v. 
Jolm,  ib.  171. 

'■2  1  Eng.  18;  Harper  v.  Baker,  8  Men. 
421. 

3  Per  Shaw,  C.  J.,  Esson  v.  Tarbell,  9 
Cush.  415. 

(a)  To  this  general  rule  tliere  was  at 
common  law  one  exception  ;  where  cattle 
were  distrained  datiuu^e  feasant,  and  before 
impounding  sufficient  amends  were  ten- 
dered. The  New  Hampshire  statute  has 
made  some  other  exceptions.  Dame  v. 
Dame,  43  N.  H.  37. 

(b)  The  question  has  involved  the 
recognized  distinction  between  abuse 
of  an  autliority  conferred  by  law  and 
that  conferred  by  act  of  pari//,  as  consti- 
tuting a  trespass  ah  initio.  See  Six  Car- 
penters' case,  8  Co.  290 ;  Gates  v.  Lowns- 
bury,  20  Johns.  427.  By  a  late  decision 
in  England,  replevin  is  not  maintainable, 
unless  there  has  been  a  taking  of  the 
goods  out  of  the  possession  of  the  owner. 
Thus  A,  being  indebted  to  the  plaintiff, 
brought  him  15/.  towards  payment,  but 
requested  and  obtained  permission  to  lay 
the  money  out  in  the  purchase  of  a  horse 
and  cart,  which  were  to  be  the  plaintiff's, 
but  of  which  A  was  to  have  the  posses- 
sion and  use,  subject  to  such  occasional 
use  as  the  plaintiff  luight  require  to  have 
of  them,  and  to  their  being  given  up  to 


*  Marshall  v.  Davis,  1  Wend.  109; 
Hopkins  v.  Hopkins,  10  Johns.  369 ;  Bruen 
V.  Ogden,  6  Halst.  370. 

5  Haythorn  v.  Rushforth,  4  Harring. 
IGO. 

^  Drummond  v.  Hopper,  4  Harring.  327. 

T  Ayers  v.  Hewett,  1  App.  281. 

the  plaintiff  when  he  should  demand 
them.  After  A  had  purchased  the  horse 
and  cart,  and  had  the  possession  and  use 
of  them  for  some  time,  he  determined  to 
emigrate.  They  were  used  in  transport- 
ing his  effects  to  the  pier  at  which  he  was 
to  embark,  and  the  defendant,  to  whom 
he  owed  money  for  fodder  supplied  to  the 
horse,  went  with  him,  to  procure  payment 
if  he  could.  At  parting,  A  delivered  the 
horse  and  cart  to  him,  telling  him  to  take 
them  for  the  debt ;  but  adding,  that  he 
owed  the  plaintiff  money  also,  and  that, 
if  he  would  discharge  the  debt  due  to  the 
defendant,  which  was  much  less  than 
their  value,  he  was  to  give  them  up  to 
him.  The  plaintiff  for  some  time  re- 
mained in  ignorance  of  what  had  passed, 
and,  afterwards  coming  to  the  knowledge 
of  it,  demanded  them  ;  but  the  defendant 
refused  to  deliver  them  unless  his  debt 
was  paid;  whereupon  the  plaintiff  re- 
plevied. On  the  plea  of  non  cepit,  held, 
there  was  no  taking  which  would  main- 
tain replevin.  Mennie  v.  Blake,  37  Eng. 
L.  &  Eq.  169. 


CH.    I.]         GENERAL   NATURE    AND    OBJECTS    OF   THE    ACTION.  5 

So,  in  replevin,  any  evidence,  which  shows  that  the  defendants 
obtained  possession  from  one  not  authorized  to  sell,  is  sufficient 
evidence  of  an  unlawful  takiiif:^.^  So  where  A,  having  the  pos- 
session and  management  of  a  farm,  forbade  H  to  take  his  liorse 
therefrom  ;  held  a  sufficient  taking  to  supj)ort  repiuviu.- (a) 

§  6.  These  distinctions,  however,  as  to  what  constitutes  a  tor- 
tious taking,  have  become  comparatively  unimportant ;  because 
the  prevailing  and  almost  universal  rule  now  is,  that  replevin 
lies  for  the  recovery  of  any  personal  chattel  unlawfully  detained 
from  the  owner,  although  there  may  have  been  no  tortious  tak- 
ing.^ The  reasons  for  this  more  liberal  application  of  the  action 
are  well  explained  by  the  court  in  Massachusetts.  "  It  is  a  gen- 
eral remark  in  the  books,  that,  where  there  has  been  a  tortious 
taking,  replevin  will  lie  .  ,  .  Where  the  taking  was  originally 
without  wrong,  but  the  party  detains  the  goods  wrongfully,  the 
owner  should  have  some  remedy  for  them  specifically,  if  to  be 
found.  The  defendant  contends  that  detinue,  in  such  case,  is  the 
only  remedy.  .  .  .  This  is  certainly  not  so  effectual  a  remedy,  if, 
indeed,  it  be  not  entirely  obsolete.  The  judgment  in  detinue  is 
to  recover  the  thing,  or  the  value  of  it,  if  it  cannot  be  found, 
with  the  damages  for  the  taking.  In  replevin,  the  thing  is  im- 
mediately seized  ;  but  in  detinue  the  possession  is  not  changed 
until  after  judgment ;  and,  this  being  conditional,  the  value,  as 
estimated  by  the  jury,  may  be  but  a  poor  compensation.  After 
a  judgment  in  detinue,  a  distringas  goes  to  the  defendant,  ad 
deliberanda  bona;  and,  if  he  will  not  deliver  them,  the  plaintiff 
shall  have  the  value,  as  ascertained  by  the  jury.  So  that  it  is  at 
the    defendant's    election    to    deliver    the    goods    or    the    value. 

1  Gray   v.  Nations,  1   Pike,  557 ;  Eg-  Trevill,  Sid.  81 ;   Jacobsen   i\   Lee,   Lil. 

gleston  V.  Miindy,  4  Midi.  2'.)5.  Eiit.  349.     "  Everj'  unlawful  detention  is 

-  Moore  v.  Moore,  4   Mis.  421.  a   taking."  Per  Ld.  Deinnan,  C.  J.,  Wil- 

3  Marston  i-.   Baldwin,  17  Mass.  GOG ;  Hams,  5  Ad.  and   Ell.   144;  31   Com.  L. 

Baker  v.  Fales,  IG  Pick.  147 ;  Badger  v.  5d'J. 

Phinney,     15    Mass.    359 ;    Arvuidel     v. 

(a)  After  an  action,  to  recover  posses-  he  commenced  the  action  in  the  morning, 

sion  of  .sjiecitic  personal  property,  and  dam-  and,  after  lie  had  put  the  jiajiers  in  the 

ages  for  its  detention,  has  been  commenced  sheriff's    liands    for    service,   found    the 

by  the  service  of  summons  ;  a  voluntary  goods   lying   in  front   of  the  defendant's 

taking  of  the  ])roperty,  not  from  the  de-  door,  and  took  ]iossession  of  them,  there, 

feiidaiits     tliciiiselves,    but  by    plaintiff's  about  noon,  or  soon  after  noon,  there  being 

picking  it  up  where  he  chanced  to  find  it,  no  evidence  as  to  tiie  time  of  serving  the 

does  not  e.xtinguish  the  right   of  action,  summons;  held,  upon  this  evidence,  a  ver- 

Where  tlie  only  evidence,  as  to  the  time  diet  for  the  plaintiff  should  lie  sustained, 

of  cominencenicnt  of  the  action,  was  the  Tracy  v.  Neiv  York,  9  Bosw.  390. 
testimony  of  the  plaintiff  (a  lawyer)  that 


6  REPLEVIN.  [book   I. 

Replevin  is,  then,  the  only  certain  remedy,  and  it  may  be  main- 
tained where  the  taking  was  lawful,  but  the  detention  unlawful." 
This  extended  application  of  the  remedy  is  further  justified,  by 
a  statutory  provision  for  it,  where  goods  are  taken,  distrained,  or 
attached.^  In  a  later  case,  argued  for  the  defendant  by  very 
eminent  counsel,  the  same  learned  judge  reaffirms  the  former 
decision,  upon  a  full  examination  of  the  English  and  American 
authorities  on  both  sides  of  the  question.^  And,  in  still  another 
case,  Mr.  Justice  Wilde  holds  that  "  such  is  clearly  the  law  of 
Massachusetts,  whatever  may  be  the  law  of  England,"  referring 
to  the  terms  of  the  writ  prescribed  by  statute,  — "  taken, 
detained,  or  attached"  (as  the  case  may  be).^  And,  in  a  compar- 
atively recent  case  it  is  said :  "  By  our  statute,  replevin  will  lie 
for  a  wrongful  detention  only."^ 

§  7.  And  as,  upon  the  theory  of  a  wrongful  taking,  replevin  is 
held  a  concurrent  remedy  with  trespass ;  so,  upon  the  ground  of 
wrongful  detainer  only,  it  is  concurrent  with  the  other  action  for 
damages,  trover.^ 

§  8.  The  prevailing  doctrine  in  relation  to  replevin,  in  still 
another  aspect,  is  stated  by  a  writer  of  high  authority,  as  follows  : 
"  Replevin  may  be  brought  to  recover  goods  which  are  still  de- 
tained by  the  person  who  took  them  ;  and  this  is  called  replevin 
in  the  detinet,  which  has  been  long  since  obsolete.  But  the  mod- 
ern action  is  in  the  detinuit ;  which  is  so  called,  because,  as  the 
word  imports,  it  is  brought  when  the  goods  have  been  delivered  to 
the  party,  which  is  done  by  the  sheriff  upon  a  writ  of  replevin,  or 
plaint,  levied  before  him.  The  plaintiff  in  replevin  in  the  detinet 
was  entitled  to  recover  as  well  the  value  of  the  goods  as  damages 
for  taking  them.  But  in  the  present  action  in  the  detinuit  he 
can  only  recover  damages  for  the  taking.  "  '°  If  the  allegation  is 
in  the  detinuit,  the  damages  are  presumed  not  to  include  the 
value  of  the  property. "  (a) 

1  Per  Putnam,  J.,  Badger  v.  Phinney,  bins,  2  Blackf.  415;  Waterman   v.  Mat- 

15  Mass.  362,  363.  teson,  4  R.  I.  539 ;  Seaver  v.  Dingley,  4 

■^  Baker  v.  Fales,  16  Mass.  147.  Greenl.  306.     See  Amer.  Law  Eev.,  Jan. 

3  Marston  v.  Baklwin,  17  Mass.  610.  1873,  p.  364. 

4  Esson  V.  Tarbell,  U  Cush.  415.     Ace.  &  Eggleston  v.  Mundy,  4  Mich.  295. 
Weaver  v.  Lawrence,  1  Uall.  156  ;  Shea-  •>  Potter  v.  Worth,  1  Wms.  Saun.  347  b, 
rick  V.  Huber,   6  Bin.    3;    Stougliton   v.  n.  2. 

llappalo,    3     S.    &    K.    562;     Cullum    v.  "•  Fox  i>.  Prickett,  34  N.  J.  13. 

Bevans,  6  Har.  &  J.  469  ;  Daggett  v.  Rob- 

(a)  The  law  upon  this  subject  in  the  Hampshire  it  is  held,  that,  at  common 
different  States  is  variously  modified  by  law,  and  before  the  statute  in  relation  to 
express  statute  and  local  usage.     In  New    replevin,   replevin  could,  be   maintained 


CH.    I.] 


GENERAL   NATURE    AND    OBJECTS    OF   THE    ACTION. 


§  9.  A  somewhat  intermediate  view  of  the  point  in  question  is, 
that  replevin   lies  against  a    possessor    of  property    unlawfully 


for  the  wrongful  detention  of  a  distress. 
Osgood  V.  Green,  10  Fost.  210.  15nt 
where  goods  come  into  tlie  hands  of  the 
defendants  iawfull}',  as  carriers,  rei)levin 
cainiot  he  maintained  for  mere  detention. 
Woodward  r.  Orand  T.  4i')  N.  11.  i'yj.i. 

In  reniisylvania,  re])levin  lies,  wlier- 
ever  one  man  claims  goods  in  the  jiosse.s- 
sion  of  another.  IJoyle  r.  Kaiikin,  22 
Tenn.  1C.8. 

In  Indiana,  it  is  necessary  to  prove 
cither  an  unlawful  taking  or  an  uidawful 
detainer.     Baer  r.  .Martin,  2  Cart.  22'J. 

In  Arkansas,  to  maintain  rejilevin  in 
tlie  (leliiKf,  the  plaintill'  is  not  l)ound  to 
prove  a  hailment  by  himself  or  some  per- 
son for  him  to  the  defendant.  IMielan  v. 
Boniiam,  4  Eng.  38'J. 

In  Misso\iri,  replevin  will  lie,  although 
no  trespass  lias  been  conimitted  by  the 
defendant  in  taking  the  property.  Skin- 
ner r.  Stense,  4  Mis.  '.13. 

In(ieorgia,  unlawful  taking  is  required 
to  maintain  a  possessor!/  warrant.  Bryan 
V.  Wiiit.sett,  3'J  Geo.  71o. 

In  Ohio,  it  has  been  held  that  replevin 
lies  in  all  cases,  imless  specially  excepted 
by  statute.  Stone  v.  Wilson,  Wright, 
ir/J.  liut  by  a  late  decision,  it  is  wrongful 
detention,  verified  by  affidavit,  that  gives 
the  right  of  action.  A  tortious  taking  is 
insufficient.  State,  &c.  v.  Jennings,  14 
Oiiio  St.  73. 

In  North  Carolina,  a  power  of  distress, 
given  to  a  navigation  company,  uj)on  a 
refusal  to  i)ay  their  tolls,  is  constitutional, 
and  replevin  lies  for  its  abuse.  Tiie  State 
r.  Patrick,  3  Dev.  478.  The  act  of  North 
Carolina  in  relation  to  rejilevin  (Rev.  Sts. 
c.  101)  does  not  repeal  or  supersede  the 
common  law  remedv.  Dufly  v.  Murrill, 
'J  Ired.  46. 

In  I'ennsylvania,  replevin  is  not  alto- 
gether a  proceeding  in  rem,  but  against 
tiie  defendant  in  the  writ  personally,  with 
a  summons  to  appear.  Bower  v.  Tallman, 
5  W.  &  S.  556. 

In  Delaware,  replevin  is  not  confined 
to  distress  for  rent  in  arrear,  but  may  be 
used  wherever  one  claims  ])roperty  in 
another's  possession.  Clark  v.  Adair,  3 
llarring.  113.  The  provisions  of  the 
(Del.)  iiev.  Code,  379,  380,  extending  the 
common-law  remedy  of  replevin  to  cases 
of  wrongful  detention,  do  not  ai)])iy, 
where  goods  are  seizetl  by  a  sheriff  on 
execution  against  a  party  who  holds 
them  under  a  contract  of  hiring  with 
the  plaintiff,  which  is  to  be  terminated 
on  the  latter's  giving  him  notice;  if  no 


such  notice  is  given.     Stapleford  v.  White, 
1  Iloust.  238. 

In  Wisconsin,  a  verdict,  that  the  prop- 
erty detained  is  that  of  the  plainlitl',  and 
awarding  damages  for  the  detention,  is 
defective,  and  must  be  set  asiile,  unless 
it  be  also  found  that  the  detention  was 
unjust.  Swain  r.  Koys,  4  Wis.  150. 
But,  in  replevin  in  the  n jiii,  a  veniict  of 
"unjust  detention"  does  not  dispose  of 
the  material  issue  raised  by  the  allegation 
of  taking,  and  is  therefore  bail.  Iteplevin 
in  the  rtjiit,  under  the  Code,  resembles 
the  old  tresjjass  vi  el  unnis,  and  only 
])uts  the  taking  in  issue.  Heplevin  in  the 
(letinet  is  a  substitute  for  the  old  action 
of  detinue,  where  the  injury  is  only 
in  the  keeping.  Konge  v.  Dawson,  9  Wis. 
246. 

In  Minnesota,  under  the  statute,  the 
plaintiff  must  allege  that  the  defendant 
"  wrongfuUv  "  took  the  property.  Coit 
V.  Waples,  1  Min.  134.  The  statute  of  Wis- 
consin, adopted  in  Minnesota,  retains  the 
common-law  action  of  replevin,  and  also 
gives  it  in  lieu  of  detinue,  where  only  the 
detention  is  wrongful.     lb. 

In  Mississipi)i,  replevin  was  held  to  lie 
only  in  case  of  distress  for  rent.  Whee- 
lock  V.  Cozzens,  6  How.  Miss.  279. 

In  New  York,  the  "  claim  or  delivery 
of  personal  property,"  under  the  Code, 
is  a  substitute  for  replevin  as  it  was  reg- 
ulated by  the  Uevised  Statutes.  That 
action  was  a  possessory  action  for  the  re- 
covery of  specific  property  in  the  defend- 
ant's possession  or  control,  with  damages 
for  the  detention.  If  the  pro])erty  were 
removed  or  concealed  (in  fraud  of  the  re- 
plevin) so  that  the  sheriff  could  not  find 
it,  and  only  in  such  case,  the  Ki'vised 
Statutes  added  the  remedy  of  arrest  and 
bail.  Heplevin  could  not  be  maintained 
against  a  party  who  had  neither  the  pos- 
session nor  control  of  the  chattels  claimed, 
and  had  not  parted  with  them  in  frau<l  of 
the  action.  The  phiintitfs  remedy  was 
in  trespass  or  trovi'r.  The  assumi)tioii  «if 
the  court  in  Cary  r.  Ilotaling,  and  <  )lm- 
stead  V.  Ilotaling,  1  Hill,  311,  that  re- 
plevin was  a  concurrent  remedy  in  all 
cases  with  trespass  de  lionis  as/ioriatis.  was 
not  well  founded.  Roberts  v  Kandel,  3 
Sandf  707.  See  Barrett  v.  Warren,  3 
Hill,  348  ;  Zachrisson  i".  Aliman,  2  Sandf. 
68. 

The  replevin  statute  of  Arkansas,  which 
provides  for  putting  the  ])laiiiiitf  in  pos- 
session of  property  liefore  liis  title  is  adju- 
dicated,   is    constitutional.     Fleeman    v. 


8  REPLEVIN.  [book   I. 

taken  (except  officers  of  the  law).i  Tims,  in  New  York,  a  dec- 
laration in  re})levin  in  the  cepit  must  show  a  wrongful  taking. 
But  it  is  sufficient  to  allege  that  the  defendant  todk  the  property 
of  the  plaintiff,  and  unjustly  detains  the  same.  Such  an  allega- 
tion imports  a  tortious  taking.-  (a) 

§  10.  The  following  case  illustrates  the  nature  of  the  title  and 
demand  which  are  necessary  to  constitute  a  lorongful  detention, 
and  justify  an  action  of  replevin  upon  that  ground.  After  the 
deacons  of  a  church  had  seceded  from  it,  the  church  elected 
trustees,  authorizing  them  to  demand,  receive,  and  recover  of 
the  deacons,  of  whom  the  defendant  A  was  one,  all  the  church 
property.  The  communion  plate,  which  was  under  A's  care,  was 
kept  at  the  house  of  B,  who  lived  near  the  meeting-house.  The 
trustees  showed  A  a  copy  of  the  vote,  and  requested  him  to 
deliver  them  the  plate.  He  replied,  that  he  would  consult  his 
counsel,  and,  if  the  trustees  had  a  right  to  the  plate,  he  would 
deliver  it  to  them.  After  a  few  days,  the  trustees  made  a  de- 
mand on  B,  who  refused,  saying  that  A  had  directed  her  not  to 
deliver  it  to  any  one  without  an  order  from  him.  The  church 
then  elected  the  plaintiff  a  deacon  ;  and  he  showed  B  the  certifi- 
cate of  his  election,  and  demanded  the  plate  ;  but  B  refused  to 
deliver  it,  assigning  the  same  reason  as  before  ;  whereupon  the 
plaintiff  forthwith  replevied  it.  Held,  the  trustees  were  not 
authorized  to  receive  and  recover  the  property  ;  that  A's  refusal, 
until  he  could  ask  advice,  was  not  unreasonable,  and  their  de- 
mand, if  valid,  could  not  avail  the  plaintiff,  suing  in  his  capacity 
of  deacon;  that  the  plaintiff's  demand  on  B  could  not  affect  A 
before  he  had  notice  of  it;  and,  consequently,  there  was  no 
evidence  of  a  tortious  detention.*^ 

§  10  a.  Replevin  will  not  lie  for  property  received  by  warehouse- 
men, destroyed  through  their  negligence,  and  not  in  existence  at 

1  Murphy  v.  Tindall,  1  Hemp.  10.  3  Page  v.  Crosby,  24  Pick.  211. 

2  Childs  V.  Hart,  7  Barb.  370. 

Haren,  3  Eng.  13G ;  Prater  v.  Frazier,  6  prosecuted  by  reason  of  the  concealment, 

Eng.  249.  &c.,    of  the   property   of   tlie  defendant. 

In  order  to  maintain  a  bill  in  equity  Clapp  v.  Sheppard,  2  ]\Iet.  127. 
under  the  (Mass.)  Rev.  Sts.  c.  81.  §  8,  to  (a)  Counts  in  tlie  cepit  and  in  the  de- 

compel  the  delivery  of  property  detained,  tinet   may  be  joined  in  replevin ;    but  in 

&c.,  so  that  it  cannot  be  replevied,  the  such  case,  in  Arkansas,  the  plaintiff  must 

plaintiff  must  show  that  he  has  a  legal  support  each  count  by  affidavit.     Cox  v. 

right  to  maintain   an  action  of  replevin,  Grace,  5  Eng.  86. 
and  that  such  action  cannot  be  eflectually 


CH.  I.]  GENERAL    NATURE    AND    OBJFXTS    OF    THE    ACTION.  9 

the  commencement  of  the  action.^  It  was  formerly  licM  that  re- 
plevin does  not  lie  for  money ;  because  it  cannot  be  identified.''^ 
But  it  is  otherwise  in  case  of  money  sealed  up  in  a  bag,  deposited 
with  the  defendant,  and  wrongfully  detained  by  him  after  de- 
mand.^ And  the  distinctions  are  now  made,  that  money  cannot 
be  replevied,  unless  specifically  described,  and  shown  to  be  speci- 
fically the  property  of  the  plaintiff';  nor  will  the  action  be  sus- 
tained as  for  money  had  and  received."* 

§  10  6.  The  term  "  goods  "  in  the  first  clause  of  §  14,  33  (Verm.) 
Comp.  Stat.  (Gen.  Stat.  p.  320,  §  13),  providing  that  replevin  may 
be  maintained  for  goods  unlawfully  taken  or  detained  from  the 
owner  thereof,  applies  to  animate  movable  property.^ 

§  10  c.  A  boom  company  was  bound  by  its  act  of  incorporation  to 
intercept,  guard,  raft  out,  and  ''  scale  "  (by  a  measurer  appointed 
by  the  court)  all  logs  floating  down  a  certain  river.  One  of  two 
rival  claimants  of  a  lot  of  logs,  of  uncertain  number,  mingled 
with  other  logs  in  the  boom,  brought  replevin  against  the  com- 
pany for  "  329,760  feet  of  white-pine  saw  logs,  more  or  less, 
marked  '  E,'  of  the  value,"  &c.  The  other  claimant  was  admitted 
as  co-defendant.  The  sheriff"  returned  "  replevied  as  within 
commanded.  Defendants  gave  bond  and  retained  the  property," 
and  pleaded  non  cepit  and  "  property."  Held,  they  were  not  by 
the  return  and  plea  estopped  from  showing  the  actual  amount  of 
the  lumber.*^ 

§  10  d.  A  description  of  the  property,  as  "  a  box  of  skins  and 
furs,  marked  J.  Windoes,  Logansport,  Indiana,"  is  sufficient." 

§  10  e.  In  replevin  of  a  box  of  furs,  shipped  by  express  to  the 
plaintifT,  to  be  paid  for  before  delivery ;  it  is  not  a  sufficient  reply  in 
avoidance,  &c.,  that,  besides  the  furs  answered  upon,  <fcc.,  the  box 
contained  certain  furs  bought  of  third  parties,  but  unmarked  and 
commingled,  <fec. ;  these  not  being  the  plaintiff 's  property,  until 
delivery.^ 

§  11.  A  writ  of  replevin  is,  in  general,  effectual  for  the  delivery 
of  goods  or  personal  'property  only  .^  It  does  not  lie  to  try  the  title 
to  land.^*^     Thus,  it  does  not  lie  for  crops,  cut  and  removed  by  a 

1  Burr  V.  Dnuslicrty,  L'l  Ark.  559.  7  iMinclirod  v.  Windoes,  20  Iiul.  288. 

2  Hanks  r.  Wlietstone,  .Moor,  8'.t4.  ^  Ih. 

•'  Skiilniorc  v.  Tavlor.  *2U  Cal.  Gl'.).  "  Roberts    v.    Tlie     Dauphin,    &(!.    19 

4  Sa-rer  v.  Blain,"44  N.  Y.  445.  Tcnn.  71 ;  Rex  v.  Leeds,  4  T.  R.  584 ;  2 

fi  Eddy  V.  Davis,  35  Vt.  247.  Saun.  84. 

•'  Susquehanna    v.   Finney,   58   Penn.  '"  Eaton  v.  Southby,  Willcs,  131. 

200. 


10  REPLEVIN.  [book    I. 

disseisor.^  (a)  Nor  for  a  freehold,  or  a  house  built  on  leased  land, 
illegally  distrained.^     Nor  for  things  fixed  to  the  freehold  ;  as  in 

\  case  of  fixtures  separated  from  a  mill.^  Though  it  is  otherwise 
if,  after  the   sheriff  has  levied  on  them,  they  are  severed.*  (b) 

I  Nor  against  the  actual,  ho7id  Jide  owner  of  land,  for  taking  slates 
out  of  it.^     So  the   original  owner  of  land  sold  for  taxes  cannot 

i  bring  replevin  for  timber  cut  by  the  purchaser  before  redemp- 

\tion.^  (c)  So  in  New  York,  the  purchaser  of  land  sold  on  exe- 
cution, after  receiving  the  sherifi^'s  deed,  cannot  maintain 
replevin  in  the  cepit  for  timber  which  had  been  cut  by  the 
defendant  while  he  remained  in  possession,  during  the  fifteen 
months  subsequent  to  the  sale.^  So  an  action  in  the  nature  of 
replevin,  to  recover  hay  cut  on  premises  claimed  by  the  plaintifi", 
will  not  lie,  when  the  defendant  purchased  the  hay  from  A,  who 
was  in  actual  and  adverse  possession.^  So  replevin  for  hay  cut  on 
public  lands  does  not  lie,  when  the  defendant  is  in  adverse  pos- 
session, under  a  claim  of  a  right  by  virtue  of  the  pre-emption 
laws.  The  title  to  land  cannot  be  thus  tried.^  And  in  replevin 
for  hay  raised  on  public  land,  which  the  plaintiff  claims  on  the 
ground  of  prior  possession,  and  as  being  engaged  in  perfecting  his 
claim  under  the  pre-emption  laws  ;  evidence  is  admissible,  that  the 
defendant  possessed  the  qualifications  of  a  pre-emptor,  and  had 
filed  his  declaratory  statement  to  pre-empt,  in  connection  with 
proof  of  entry  and  actual  possession,  up  to  the  time  the  hay  was 
cut,  for  the  purpose  of  proving  adverse  possession. ^"^  So,  where 
the  plaintijBT  holds  land  adversely,  evidence  of  title  is  not  ad- 
missible, in  replevin  for  grain  cut  on  the  land  and  carried  away.^^ 
But  replevin  may  be  maintained  for  trees  cut  down,  though 
made  into  posts  and  rails. ^^     Or,  by  a  mortgagee  against  a  mort- 

1  De  Mott  V.  Hagerman,  8   Cow.  220;  7  Rich  v.  Baker,  3  Denio,  79. 
Anderson  v.  Hapler,  34  111.  436.  8  Stockwell  v.  Phelps,  34  N.  Y.  363. 

2  Vausse    v.   Russel,  2  M'Cord,  329  ;  9  Page  v.  Fowler,  28  Cal.  605. 
Roberts  v.  Dauphin,  7  Harring.  71.  i"  Page  v.  Fowler,  28  Cal.  605. 

3  Powell  V.  Smith,  2  Watts,  126.  'i  Lehman   v.   Kellerman,    65     Penn. 
*  Cresson  v.  Stout,  17  Johns.  116.              489. 

5  Brown  v.  Caldwell,  10  S.  &   R.  114.         1-'  Snyder  v.  Vaux,  2  Rawle,  423. 
^  Cromelien  v.  Brink,  29  Penn.  522. 

(a)  Where  trees    were  severed,  before  lie  for  a  slave,  notwithstanding  the  act  of 

the  purchaser,  under  a   foreclosure  sale,  1840,  making  slaves  real  estate.     Gullett 

was  entitled  to  possession  ;  held,  the  action  v.  Lamberton,  1  Kng.  109. 
of  "claim  and  dehvery  "  would  not  lie  for  (c)  One  claiming  land  as  a  pre-emptor 

their  recovery.     Berthold  v.  Holman,  12  cannot  maintain  replevin  for  timber  cut 

Minn.  335.  thereon,  till   his   right   has  been  proved. 

[h)  In  Arkansas,  replevin  M'as  held  to  Bower  a.  Higbee,  9  Mis.  259. 


CH.  I.]       gi:neral  nature  and  objp:cts  of  thr  action.  11 

gagor  in  possession,  for  wood  and  timber  cut,  in  waste  of  the  estate, 
and  substantial  diminution  of  the  security.^  (a)  Or  for  "  mills, 
barns,  steam-engines,  offices,  and  sheds,"  which  may  or  may  not  be 
fixtures.  This  is  matter  of  evidence,  unnecessary  to  be  stated 
in  pleading.2  So  replevin  lies,  in  favor  of  a  purchaser  of  real  prop- 
erty from  the  owner  or  from  a  sheriff,  against  one  who  detaches 
machinery  therefrom  ;  although,  in  order  to  maintain  the  action, 
the  plaintiff  must  prove  title  to  the  land."^  And  where  title  to 
real  estate  is  incidentally  brought  in  question  in  replevin,  evi- 
dence as  to  such  title  is  admissible.  Thus,  in  replevin  fur  logs 
cut  upon  land  of  the  defendant's  vendor,  and  seized  by  the  plain- 
tiff, it  was  material  for  the  defendant  to  prove  tiiat  tiie  logs  were 
not  taken  from  land  in  the  plaintiff's  possession.  Held,  evidence 
of  title  was  admissible,  to  prove  possession  in  the  rightful  owners, 
which  possession  the  defendant  had  purchased,  the  law  casting 
the  possession  of  wild  timber  lands  on  the  owner,  in  the  absence 
of  any  actual  adverse  possession.^  And  it  is  held  in  a  late  case, 
that,  when  a  person  in  adverse  possession,  without  color  of  title, 
cuts  wood,  the  wood  belongs  to  the  true  owner,  and  replevin  may 
be  maintained  by  him.^  So  a  mere  temporary  occupancy  of  land, 
for  the  purpose  of  taking  off  timber,  by  one  having  no  right  of 
possession,  is  not  such  actual  possession  as  defeats  the  construc- 
tive possession  of  the  owner.  Nor  does  such  an  eiitr}'  and  cutting 
of  timber  defeat  the  owner's  title  to  it;  but,  as  soon  as  it  is 
severed,  his  right  of  property  vests,  and  he  can  maintain  replevin 
for  it.^  So  replevin  will  lie,  by  the  owner  of  land,  for  a  dwelling- 
house  erected  and  removed  by  a  vendee,  occupying  such  land 
under  an  executory  contract  of  sale,  which  he  has  neglected  to 
perform,  so  long  as  the  house  can  be  identified,  and  is  not  per- 
manently annexed  to  other  realty,  although  placed  on  blocks 
resting  on  boards  lying  on  the  ground.'  (b) 

1  Waterman  v.  Mattoson,  4  R.  I.  5o9.  *  Kimball  v.  Lohmas,  31   Cal.  154. 

-  Brearly  v.  Cox,  4  Zabr.  287.  •>  Brewer  v.  Flemin{i,  51  Peiin.  102. 

'  Harlan  v.  Harlan.  3  Harring.  507.  ^  Ogden  v.  Stock,  34  lU.  623. 
*  Clement  v.  Wrigiit,  4U  I'onn   250. 

(a)  Replevin  does   not  lie  by  the  as-  that  he  had  cleared  and  fenced  tlie  ground, 

signee  of  a  mortgage  for  a  house  erected  and  put  in  the  crop  of  wheat,  and   was  in 

by  the  mortgagor  after  the  mortgage,  and  possession   of  the  jiremises.  and  that  the 

sold  to  the  (lefendant.    Clark  v.  Key  burn,  defendant  cut  and  carried  away  tiie  grain  ; 

1  Kans.  281.  held,  it  was  an   admissil)lo  and  sufficient 

(6)  In  rejilev  in  for  eighty  dozen  of  wheat  defence,  that  the  plaintiff  in   sowing  the 

in  the  sheaf,  the  plaintiff  having  proved  gram  was  a  trespasser,  that  the  defendant 


12  REPLEVIN.  [book   I. 

§  12.  The  record  book  of  a  corporation  may  be  replevied.^ 
Thus,  parish  records.^     So,  a  deed,  by  the  grantee.'^  (a) 

§  13.  An  equitable  assignee  of  a  chose  in  action  cannot  re- 
plevy it  from  tiie  legal  owner.* 

§  14.  Replevin  is  local,  and  must  be  brought  in  the  county 
where  the  goods  are  taken  or  distrained.^  So,  although  brought 
for  a  cause  of  action  for  which  trespass  de  bonis  asportatis  would 
lie.^  And  the  venue  will  not  be  changed  from  the  county  where 
the  cause  of  action  arose.''  Upon  this  point,  it  is  stated  by  a 
writer  of  high  authority  :  "  Replevin  differs  from  trespass  clau- 
sum  /regit.  In  the  latter  it  is  held  to  be  sufficient  for  the  plain- 
tiff to  allege  the  trespass  to  have  been  done  in  a  vill  or  parish 
only,  without  mentioning  any  place,  for  it  is  not  material ;  and  if 
the  plaintiff  do  mention  a  place,  the  defendant  may  justify  in 
another  place  without  a  traverse,  and  the  plaintiff  must  ascer- 
tain the  place  in  a  new  assignment.  But  as  there  can  be  no  new 
assignment  in  replevin,^  and  it  is  also  an  action  which  requires 
greater  certainty  in  the  declaration,  the  plaintiff  is  bound  to 
mention  the  place  of  taking  at  first  in  his  declaration."  ^  In  the 
late  case  of  Strong  v.  Lawler,  upon  a  careful  examination  of  the 
authorities,  the  strict  rule  is  held  to  be,  that,  in  case  of  distress 
for  rent,  the  writ  of  replevin  must  allege  the  place  as  well  as  the 
town  where  the  distress  was  made.  But  the  rule  is  held  inappli- 
cable to  replevin  in  other  cases.^*^ 

1  Southern,  &c.  v.  Hixon,  5  Ind.  165.  6  Williams  v.  Welch,  5  Wend.  290. 

-  Sawyer   v.   Baldwin,    11   Pick.   492.  ^  Atkinson  v.  Holeomb,  4  Cow.  4-5. 

3  King  V.  Gilson,  32  111.  348.  8  Cockley  v.  Pagrave,  Freeman,  238. 

■*  Clapp  V.  Shepard,  2  Met.  127.  9  Potter  v.  Nortli,  1  Wms.  Saun.  347  a, 

^  Ilobinson  v.  Mead,   7   Mass.  353  ;  1  note. 

Saun.  347.      But  see  Crocker  v.  Mann,  3  '"  37  Conn.  177. 
Mis.  472. 

entered  and  took  actual  possession  of  the  diana  Code  for  the  recovery  of  personal 
land,  wliicli  he  had  ever  since  maintained,  property.  Wilson  v.  Rybolt,  17  Ind.  391. 
and  while  in  possession  cut  the  grain.  By  A  party  cannot  recover  scrip,  of  which  the 
his  entry,  he  came  in  possession  of  the  legal  title  is  in  the  defendant,  by  the  plain- 
land  and  the  grain,  and  the  title  to  the  tiff's  permission,  in  an  action  of  replevin, 
land  could  not  be  tried  in  the  action,  or  of  claim  and  delivery,  which  is  of  the 
Elliott  V.  Powell,  10  Watts,  454.  same  legal  nature.  The  remedy  is  in 
(«)  The  old  doctrine  was,  that  replevin  equity.  Wheeler  ?;.  Allen,  49  Barb.  460. 
does  not  lie  for  title-deeds,  as  they  sai-or  of  Replevin  will  lie  for  a  note  which  the 
the  realti/.  Brooke,  Abr.,  Replevin,  4.  See  maker  has  paid  to  tlie  holder,  and  the  latter 
Clark  V.  Nevill,  1  Phila.  28.  A  title-deed  is  has  promised  to  deliver  up,  but  afterwards 
a  personal  chattel  ;  but  it  is  so  connected  refuses  to  deliver.  Savery  v.  Hays,  20 
with,  and  essential  to,  the  ownership  of  Iowa,  25.  In  replevin  for  a  note,  a  copy 
real  estate,  that  it  descends  with  it  to  the  of  tlie  note  need  not  be  set  out  in  the 
heir.  The  possession  of  title-deeds  may  comj^laint.  26  Ind.  202. 
be  recovered  in  the  action  under  the  In- 


CH.  I.] 


GENERAL  NATURE  AND  OBJECTS  OF  THE  ACTION. 


13 


§  15.  But  the  plea  of  the  plaintiff  need  not  mention  the  place 
of  taking,  but  only  refer  to  the  property  mentioned  in  the  pre- 
vious pleadings.^  («) 

§  16.  The  courts,  in  which  the  action  of  replevin  may  be 
brought,  are  of  course  prescribed  by  statute  in  the  diflerent 
States,  {b) 

1  Judd  V.  Fox,  9  Cow.  250.     See  Gardner  v.  Humpliroy,  10  Joliii.  53. 


(a)  It  is  saiil  tliiit  ropli-vin  may  l)e 
broiij,--!!!  in  any  county  in  wliich  tlie 
defendant  lias  liad  tiio  goods  since  the 
taking.     Morr,  Kopl.  lot. 

Tlie  di't'cndant,  in  replevin  lor  a  Iiorse, 
answered,  tliat  uj)  to  and  after  the  date  of 
the  suit  tiio  liorse  was  in  anotlier  county. 
Held,  tliis  was  a  (pieslioii  of  fact,  pleaded  in 
abatement ;  and,  if  not  jilcaded,  it  would 
have  been  waived.  Keller  r.  Miller,  17  Ind. 
20G.  Sec.  1  of  (Ind.)  Acts  of  18lll,  p.  141, 
covers  suits  for  the  recovery  of  personal 
property,  or  for  injury  to  it,  and  requires 
such  suits  to  be  brought  in  the  tcjwnship 
•wliere  the  defendant  resides,  and  where 
the  i)roperty  was  taken  or  detained,  if  this 
township  be  in  the  county  where  the  de- 
fendant resides.  Jocelyn  v.  Barrett,  18 
Ind.  128;  IJeddinger  v.  Jocelyn,  ib.  325. 
Actions  of  replevin  may  be  instituted  be- 
fore any  justice  of  the  i)eace  in  thecountj^ 
though  the  defendant  reside  in  a  different 
township  from  that  in  wliich  the  justice 
resides.     Test  v.  Small,  21  Ind.  127. 

Rei)levin  was  brought  in  the  county 
where  the  jtlaintiff  resided,  but  not  in  tiie 
county  where  the  property  was  detained, 
and  tor  this  reason  the  action  was  dis- 
missed on  motion.  Held,  notwithstanding 
this  disjyosition  of  the  cause,  the  comity 
court  had  jurisdiction  ;  and  it  was  their 
duty  to  render  judgment  Ibr  a  return, 
without  an\'  proof  of  the  defendant's  right 
or  aii\'  tbrmal  plea  or  avowry;  and  the 
plaintiff  could  not  contest  such  judg- 
ment on  the  ground  that  he  owned  the 
projierty.  But  such  judgment  is  not  con- 
clusive as  to  the  ownership  of  the  defend- 
ant. This  may  be  tried  in  another 
action.  After  such  dismissal,  the  de- 
fendant cannot  have  his  right  to  damages 
tried.     Collamer  v.  Page,  35  Vt.  387. 

[b)  In  Massachusetts,  it  is  held  that  a 
justice  of  the  jieacc  has  no  jurisdiction, 
nor  the  Court  of  Common  I'leas  any  ap- 
pellate jurisdiction,  in  an  action  of  re- 
plevin, except  for  beasts  distrained  for 
going  at  large,  or  impounded  for  doing 
damage.  Jordan  v.  Dennis,  7  Met.  5'JO. 
See  Gen.  Sts.;  Kidlon  v.  Emory,  G  Greenl. 


2G1  ;     McKnight    v.    Crinnion,    22     Mis. 
55!). 

Where  an  action  of  replevin  for  goods, 
commenced  before  a  justice  of  the  peace, 
was  carried  to  the  Court  of  Common 
Pleas  by  ajijieal ;  and  that  court  rendered 
judgment  for  the  defendant  for  a  return, 
with  damages  and  costs;  and  the  jilaintiff 
brought  a  writ  of  error,  for  want  of  juris- 
diction :  so  much  of  the  judgment  as 
awarded  a  retui-ii  and  damagt's  was  re- 
versed, and  so  much  as  awarded  costs 
was  affirmed.  Jordan  r.  Dennis,  7  Met. 
5'JO.  Where  the  parties  indorse  upon  tiie 
writ  an  agreement  that  the  value  of  the 
property  is  less  than  twenty  dollars,  the 
(^lass.)  Superior  Court  has  no  jurisdic- 
tion. Leonard  v.  Harmon,  105  Mass. 
113. 

In  Vermont,  a  justice  of  the  peace  was 
formerly  held  to  have  no  jurisdiction  in 
replevin,  except  for  beasts  distrained  or 
impounded,  even  where  the  value  of  the 
projierty  is  less  than  seven  dollars,  (ilover 
?•.  Chase,  1  Williams,  533.  But,  by  a 
later  case,  a  justice  of  the  jieace  has 
jurisdiction  in  replevin  for  goods  and 
chattels,  unlawfully  taken  or  detained,  of 
value  not  exceeding  twentv  dollars. 
Tripp  V.  Leland,  3'J  Vt.  ()3. 

In  Kansas,  a  justice  of  the  peace,  imder 
sec.  131  of  the  justice's  act,  has  jurisdiction 
to  try  an  action  in  replevin  only  when  the 
projierty  is  of  less  value  than  one  luni- 
dred  dollars.  If,  in  any  stage  of  the  pro- 
ceedings, it  shall  be  ascertained  that  the 
value  amounts  to  that  sum,  although 
ajipraised  at  less,  he  is  then  ousted  of  jur- 
isdiction, and  any  further  ]irocee<ling 
would  be  roraiii  uon  judice.  But  he  lias 
jurisdiction,  in  such  case,  to  render  a 
judgment  in  the  alternative,  that  the  de- 
fendant have  return  of  the  iirojiertv  and 
the  damages  foundby  the  jury  for  its  detcn- 
tinn,  if  a  return  can  be  had  (alllioiigh  the 
aggregate  value  of  thi'  projierty  and  the 
damages  for  detention  amount  to  more 
than  one  hundred  dollars,  if  each  is  less)  ; 
and  if  return  cannot  be  had,  fiien,  as  in 
trover,  for  the  value  at  the  time  of  the 


14  REPLEVIN.  [book.    I. 

§  17.  Questions  have  sometimes  arisen  in  reference  to  succes- 
sive writs  of  replevin  of  the  same  property. ^  The  owner  of 
personal  property,  left  in  possession  of  A,  may,  by  his  own  act, 
repossess  himself  of  such  property,  although  taken  from  A  by 
virtue  of  a  writ  of  replevin.^  Property  replevied  by  the  sheriff, 
and  delivered  to  the  plaintiff,  who  had  thereupon  given  the  usual 
bond,  is  not  in  custodid  legis,  and  may  be  replevied  from  such  pos- 
session.3  So,  it  is  no  sufficient  plea  to  a  writ  of  replevin,  that  the 
chattels  had  been  before  delivered  to  the  defendant  upon  his 
writ  of  replevin  against  A  ;  nor  that  the  same  officer  from  whom 
they  were  taken  by  such  writ  executed  the  writ  of  replevin 
against  the  defendant.*  So,  at  common  law,  if  the  plaintiff,  in 
an  action  of  replevin,  be  nonsuited,  he  is  not  thereby  barred 
from  bringing  another  action  of  replevin,  the  merits  of  the  cause 
not  having  been  tried  ;  and  the  statute  of  Edw.  I.,  prohibiting  a 
second  replevin  after  a  nonsuit,  is  not  in  force  in  Indiana.^  But, 
in  general,  one  cannot  replevy  replevied  property.^  Replevin 
does  not  lie  for  a  horse,  when  the  plaintiff  has  previouly  replevied 
him  in  a  suit  which  was  dismissed  for  a  defect  in  the  bond,  but 
no  judgment  for  return  was  ever  rendered,  and  the  plaintiff 
returned  the  horse  to  the  defendant's  agent ;  unless  the  defendant 
authorized  such  return,  or  subsequently  recognized  and  approved 
of  it.'^  So  one  who  has  purchased  property  replevied,  of  the  defend- 
ant in  replevin,  after  service  of  the  writ,  cannot  bring  a  second  re- 

1  See  Hackett  v.  Bonnell,  16  Wis.  471.         5  Daargett  v.  Eobbins,  2  Blackf.  415. 

2  Spencer  v.  McGowen,  13  Wend.  256.  6  Sanborn   v.  Leavitt,   43   N.  H.  473 ; 

3  Hagan  v.  Duell,  24  Ark.  216.  Dearmon  v.  Blackburn,  1  Sneed,  390. 

4  Ilsley  V.  Stubbs,  5  Mass.  280.  "^  Way  v.  Barnard,  36  Vt.  366. 

conversion,  and  costs  in  either  case.    Gar-  The  jurisdiction  conferred  by  statute 

rett  V.  Wood,  3  Kans.  231.  upon  the  St.  Louis  Law  Commissioner's 

A  justice's  jurisdiction  in  replevin  is  Court,  in  actions  in  the  nature  of  actions 
determined  by  the  actual,  not  the  ap-  of  replevin,  where  the  value  of  the  prop- 
praised,  value  of  tlie  property.  Leslie  i\  erty  claimed  does  not  exceed  one  hundred 
Reber,  4  Kans.  315.  and  tifty  dollars,  is  regulated  by  the  value 

In  Wisconsin,  the  territorial  statute  on  of  the  property,  and  not  by  the  damages, 

the  subject  requires  the  process  in  replevin  Annis  v.  Bigney,  28  Mis.  247. 
to  be  issued  in  the  name  of  the  United  In  Minnesota,  a  justice  has  no  jurisdic- 

States  ;  if  not  so  issued,  no  jurisdiction  is  tion  in  replevin  under  the  statute,  as  at 

acquired.     Roach  v.  Moulton,    1  Chand.  common  law,  until  the  ])ropcrty  lias  been 

187.  found  and  replevied.     St.  Martin  v.  Des- 

It  is  held,  in  Massachusetts,  that  re-  noyer,  1  Min.  41. 
plevin  lies,  in   a    State   court,  against  a  In  England,  the  county  court  has  jur- 

marshal  of  the  United  States,  for  property  isdiction    to   try   an    action   of  replevin, 

attached  by  him  on  mesne  process  from  a  though    title   is   in    question,    sulyect   to 

United   States  court,  against  a  third  per-  the  power  of  removal  by  the  defendant, 

son.     Howe   v.   Freeman,   14  Gray,  566.  under  19  &  20  Vict.  c.  108,  §  67.   Fordham 

But  see  24  How.  450.  v.  Akers,  4  B.  &  S.  578. 


CH.  I.]  GENERAL   NATURE    AND   OBJECTS    OF   THE    ACTION.  15 

plevin  against  the  plaintiff  in  possession,  pending  the  first  suit.^  (a) 
And  tlie  wrongful  detainer  of  a  chattel,  who  has  had  judgment  for 
its  value  against  the  owner  in  replevin,  cannot  himself  recover  in 
replevin,  after  judgment  in  trover  against  himself  for  its  value.^ 
So  a  second  action  for  the  recovery  of  personal  property  may 
be  maintained,  after  a  former  one  brought  for  the  same  purpose 
has  been  discontinued.^ 

§  18.  A  party  who  recovers  in  replevin,  and  gets  a  return 
from  one  party,  cannot  afterwards  sue  the  same  and  another 
party  in  trespass  for  the  same  transaction,  whether  the  damages 
awarded  in  replevin  had  been  recovered  or  not."*  If  all  the  goods 
described  in  the  plaint  in  replevin  were  not  found,  trover  lies  for 
the  residue.'^ 

§  19.  The  delivering,  to  the  plaintiff  in  replevin,  of  the  goods 
sued  for,  does  not  tend  to  prove  property  in  him.  Therefore, 
where  replevin  is  brought  by  A  against  B  and  C  for  a  boat,  and 
they  plead  specially  that  B  had  previously  brought  replevin 
against  A  for  the  same  boat,  and  the  sheriff  had  re|)levied  it ;  the 
former  record,  consisting  of  the  writ  and  return,  is  not  competent 
evidence,  though  admissible  under  a  plea  of  property ;  and  the 
plea  may  properly  be  struck  off,  on  motion,  as  frivolous  and  ten- 
dering an  impertinent  issue.  The  court  repudiate  the  argument, 
that  by  this  proceeding  the  defendant  in  replevin  loses  his  title 
to  the  property,  and  can  only  look  to  the  plaintiff's  bond  given  to 
the  sheriff,  and  refer  to  the  following  distinction :  "  It  has  been 
said,  in  one  case,  that  if  a  defendant  retain  the  property,  and  give 
a  property-bond,  he  becomes  the  owner  as  against  the  plaintiff, 
whatever  his  title  may  have  been  before  ;  but  his  case  is  unlike 
that  of  a  plaintifl'  to  whom  the  property  has  been  replevied.  A 
verdict  against  a  defendant  retaining  the  goods  is  for  their  value, 
and  there  is  no  judgment  against  him  pro  retorno  habendo.  A 
verdict  against  the  plaintiff,  to  whom  the  goods  have  been  deliv- 

1  Hincs  V.  Allen,  55  Maine,  114.  •*  Karr  v.  Barstow,  24  III.  580. 

2  Hoag  I'.  Bremar,  8  Mich.  160.  6  n,. 

3  Hackett  v.  Bonnell,  16  Wis.  471. 

(a)  W.  replevied  ])rnperty  from  B.,  and  not  bo  sustained.     Boers  v.  Wuerpul,  24 

delivered  it  to  the  defendant  as  liis  l)aileo.  Ark.    272.     The    defendant,    in   cross-re- 

B.  and   M.,  as  partners  nnder  the  style  of  plevin,  may  plead  in  abatement  the  origi- 

B.  &  Co.,  brought  a  second  rejilevin  aj^ainst  nal  replevin,  and,  if  his  plea  is  sustained, 

the    defendant    for    the   same   property,  may  have  judgment  for  a  return.     Beers 

Held,  it   was   a  cross-replevin,  and  could  v.  Wuerpul,  24  Ark.  272. 


16  REPLEVIN.  [book   I. 

ercd,  cannot  be  for  their  value  ;  and  the  defendant  is  entitled  to 
his  writ  of  retorno  habendo,  even  when  the  plaintiff  becomes 
nonsuit."  ^ 

§  20.  Goods  belonging  to  A,  having  been  levied  on,  were  re- 
plevied by  B,  to  whom  they  were  delivered,  and  who  died  pend- 
ing the  suit ;  whereupon  the  sheriff  retook  the  goods  from  the 
possession  of  B's  executors,  claiming  to  hold  them  by  virtue  of 
the  original  levy,  and  they  brought  replevin  against  him.  Held, 
the  replevin  by  B  gave  him  only  a  temporary  right  of  possession, 
which  expired  when  the  suit  abated,  and  the  retaking  by  the 
sheriff  was  lawful.^ 

1  Lorett  V.  Burkhanlt,  44  Penn.  173,  427  ;  Woglam  v.  Cowperthwaite,  2  Dall. 
per  Strong,  J.  174.     Sec  p.  3.  68  ;   Frey   v.   Leeper,   ib.  131 ;  Acker  v. 

2  Burkle  v.  Luce,  6  Hill,  558,  1  Comst.  White,  25  V^end.  614. 
163.     See    Bradyll  v.  Ball,   1  Bro.    Ch. 


CH.  II.]       REPLEVIN    IN    CASE   OF    DISTRESS,    IMPOUNDING,    ETC.  17 


CHAPTER  II. 

REPLEVIN   IN   CASE   OF    DISTRESS,   IMPOUNDING,    ETC. 

1.  Originally  limited  to  this  class  of  cases.  3.  Practice  in  different  States  as  to  cattle, 

2.  Tres[)ass  itb  initio.  impounding,  fences,  &c. 

§  1.  The  remedy  of  replevin  is  more  especially  applicable  in  cases 
of  disti'ess.  Indeed  it  was  originally  confined  exclusively  to  this 
class  of  cases.  Blackstone  says  :  "  This  (replevin)  obtains  only  in 
one  instance  of  an  unlawful  taking,  that  of  a  wrongful  distress. 
.  .  .  For  things  personal  are  looked  upon  by  the  law  as  of  a 
nature  so  transitory  and  perishable,  that  it  is,  for  the  most  part, 
impossible  either  to  ascertain  their  identity,  or  to  restore  them  in 
the  same  condition  as  when  they  came  to  the  hands  of  the  wrong- 
ful possessor.  .  .  But,  in  the  case  of  a  distress,  the  goods  are, 
from  the  first  taking,  in  the  custody  of  the  law ;  .  .  .  and  there- 
fore they  may  not  only  be  identified,  but  also  restored,  .  .  .  with- 
out any  material  change."  ^  (a) 

§  2.  In  replevin,  where  the  defendant  justifies  the  taking  of  the 
beasts  as  a  distress  damage  feasant,  the  plaintiff  may  reply,  that 
the  avowant,  after  making  the  distress,  abused  it,  so  as  to  render 
him  a  trespasser  ab  initio ;  as  (in  New  York)  if  he  impounds  the 
cattle  after  making  the  distress,  without  having  the  damages  pre- 
viously assessed  by  the  fence-viewers,  according  to  the  direction 
of  the  act.  (Sess.  24,  c.  78,  §  16.)  And  damages  shall  be  re- 
covered  for  the  unlawful  taking.^     But  replevin  in  ilie  cepit,  as 

1  8  Bl.  Conim.  146.     See  Baird  v.  Por-         2  Hopkins  i-.  Hopkins,  10  Jolins.  3G9. 
ter,  (17  I'enn.  105. 

(n)  "Tiie   statutes   of  tlie    MaSsacliu-  as  in  the   mother   country,   the    writ   cf 

setts    colony    declared    that  'every    man  replevin,   althoiifrh    allowed    by   law  for 

shall  have  liberty  to  replevy  his  cattle  or  any  goods  unlawfully  taken,  was  not  in 

goods    impounded,  distreined,    seized,  or  use  exct*|it  for  distresses  or  for  impounded 

extended  .  .  .  unless  it  be  upon   execu-  cattle."  Per  (iray,  J.,  Pomeroy  v.  Trira- 

tion  after  judgment,  and  in  payment  of  per,  8  Allen,  400. 
fines.'  ...  It  may  be  that  in  the  Province, 

2 


18  EEPLEVIN.  [book   I. 

for  trespass  ah  initio,  will  not  lie  for  beasts  taken  damage  feasant, 
although  the  distrainor  has  omitted  to  have  his  damages  appraised 
within  twenty-four  hours,  —  the  time  limited  by  the  statute.  It 
seems,  however,  that  replevin  in  the  detinet  would  lie.  So,  also, 
the  owner  may  after  such  neglect  retake  his  property,  or  bring 
trover,  after  demand  and  refusal.^ 

§  3.  In  New  Hampshire,  where,  after  notice,  cattle  have 
escaped  on  to  an  adjoining  close,  through  defect  of  the  fence  of 
such  adjoining  owner,  and  have  been  taken  damage  feasant, 
replevin  will  lie  to  reclaim  them.'^ 

§  4.  In  Massachusetts,  the  action  of  replevin,  given  by  the  Rev. 
Sts.  c.  113,  §  17,  to  one  whose  beasts  are  unlawfully  distrained 
or  impounded,  does  not  exclude  all  other  remedies  at  common 
law.  Trespass  will  still  lie.  The  distinction  is  taken,  that, 
"  when  a  statute  confers  some  new  right,  or  prescribes  a  remedy 
for  a  violation  of  that  right,  then  the  remedy  thus  prescribed, 
and  no  other,  is  to  be  pursued.  But  where  a  remedy  existed  at 
common  law,  and  a  statute  creates  a  new  remedy  in  the  affirma- 
tive, without  a  negative,  express  or  necessarily  implied,  a  party 
may  still  seek  his  remedy  at  common  law."  ^ 

§  5.  The  owner  of  a  posted  animal  cannot  maintain  replevin 
therefor,  in  Arkansas,  until  he  has  proved  his  property  before 
a  justice,  and  paid,  or  tendered,  the  costs  to  the  taker-up,  as  re- 
quired by  the  Digest,  c.  65,  §  25-29.^ 

§  6.  In  Michigan,  replevin  for  cattle  impounded  will  not  lie 
under  the  general  replevin  law  of  the  State.^ 

§  7.  Where  the  ownership  of  cattle,  impounded  at  a  certain 
time,  is  in  question,  and  evidence  has  been  introduced  tending  to 
show  that  the  cattle,  together  with  other  cattle  described,  were  at 
that  time  in  the  possession  of  the  plaintiff  in  replevin ;  evidence 
of  a  sale  by  the  plaintiff  of  such  other  cattle  at  a  subsequent 
time  is  not  competent  to  prove  ownership  of  the  cattle  impounded 
at  the  time  of  impounding.^ 

§  8.  In  Massachusetts,  a  pound-keeper,  who  receives  and  im- 
pounds beasts  for  going  at  large,  and  refuses  to  deliver  them  to 
the  owner,  on  demand,  unless  his   fees  and  those  of  the  field- 

1  Hale  V.  Clark,  19  Wend.  498.  *  Phelan  v.  Bonham,  4  Eng.  389. 

2  11  N.  H.  241.  5  Johnson  v.  Wing,  3  Mich.  163. 

3  Coffin   V.   Field,  7   Cush.   355.  Per         "  Edmunds  v.  Leavitt,  7  Fost.  198. 
Bigelow,  J.,  lb.  358. 


en.  II.]       REPLEVIN   IN   CASE   OF   DISTRESS,   IMPOUNDING,    ETC.  19 

driver  are  paid,  is  not,  in  any  case,  liable  therefor  in  an  action  of 
roplovin,^  The  statute  provisions,  requiring  such  payment,  apply 
to  the  alleged  cause  of  distress  and  impounding,  without  refer- 
ence to  the  legality  of  such  proceeding.  "Whether"  the  animals 
"  were  at  large  contrary  to  law,"  was  a  question  "  which  the 
j)laintilf  had  a  right  to  bring  into  judgment  in  a  proper  action 
against  the  proper  party.  The  proper  party  was  the  field-driver, 
who  was  the  actor  in  the  seizure  of  the  sheep,  and  not  the  pound- 
keeper,  who  was  bound  to  receive  them,  and  who  was  forbidden 
by  law  to  deliver  them,  except  as  above  stated."  ^  Q,,  tJie  other 
hand,  in  Connecticut,  replevin  cannot  be  sustained  against  the 
impounder  for  animals  lawfully  impounded,  under  the  act  relating 
to  the  restraining  of  swine  (Rev.  Sts.  tit.  3,  c.  7,  §  97),  but 
which,  without  his  knowledge,  the  pound-keeper,  after  a  tender 
of  the  poundage  fees,  unlawfully  detains.  The  pound-keeper,  in 
such  case,  is  not  the  agent  of  the  impounder.^ 

§  9.  A  tender  of  the  lawful  costs  of  impounding  cattle,  made 
after  a  writ  of  replevin  has  been  unconditionally  put  into  the 
hands  of  the  sheriff  for  service,  will  not  sustain  the  action.'* 

§  9  a.  The  certificate  left  with  the  pound-keeper  determines  the 
impounder,  and  replevin  may  be  brought  against  the  person  who 
signs  the  certificate.^ 

§  10.  Avowry  (a)  in  replevin.  Plea,  that  the  defendant  drove 
the  cattle  three  miles  to  the  town  pound,  and  that  it  was  his  duty 
to  have  restrained  them  in  some  other  place  more  convenient  for 
relieving  them  with  meat  and  water.  Held,  the  plea  was  bad, 
because  it  did  not  allege  that  the  defendant  had  another  conven- 
ient place  ;  and,  if  he  had,  he  had  an  election  to  restrain  them  in 
the  town  pound.'' 

§  11.  Plea,  that  the  defendant  detained  the  plaintiff's  milch 
cows  in  a  pound,  from  seven  o'clock  in  the  morning  till  five 
o'clock  in  the  afternoon,  in  warm  weather,  and  did  not  relieve 
them  with  any  meat  and  water,  whereby  they  became  greatly  in- 
jured by  shrinking  of  their  milk,  and  in  other  respects.  Pleld,  on 
general  demurrer,  a  sufficient  averment  that  the  cattle  needed 
relief,  notwithstanding  the  objections  that  the  plea  set  forth  the 
evidence  itself,  instead  of  its  legal  result,  and  did  not  expressly 

1  Folrrer  r.  Hinckley,  5  Cusli.  2G3.  <  Bills  r.  Vose.  7  Fost.  '212. 

2  Per  .Metcalt;  J.,  5  Cush.  2GG.  5  Kastnian  r.  Hills,  6  Slicp.  217. 

3  Hall  r.  Hall,  24  Conn.  o58.  «  Adams  v.  Adams,  13  Pick.  384. 

(a)  See  Avowry. 


20  REPLEVIN.  [book   I. 

aver  that  the  cattle  needed  relief.^  "  It  was  the  duty  of  the  party 
impouii(h'ng  to  furnish  suitable  food  for  the  creatures.  It  was 
not  doue.  The  party  impounding  should,  as  nearly  as  might  be 
reasonably  done,  keep  and  feed  the  cattle,  and  give  water  to  them 
as  often  as  was  required  according  to  the  usage  of  the  countr}'' 
and  of  good  iiusbandry."  ^ 

§  12.  In  Massachusetts,  if  a  writ  of  replevin  is  filled  up  within 
twenty-four  hours  after  impounding,  with  the  intent,  at  all 
events,  to  have  it  served,  whether  the  defendant  shall  give 
notice  of  the  impounding  within  twenty-four  hours  or  not;  the 
action  is  thereby  commenced,  although  the  writ  is  not  served 
nor  given  to  an  officer  for  service,  and  no  bond  is  executed, 
within  twenty-four  hours.^  In  such  case,  the  plaintiff  waives  the 
statutory  notice,  and  cannot  rely,  in  support  of  his  action,  on  the 
want  of  such  notice^ 

§  13.  In  answer  to  the  avowry  in  replevin  of  cattle  impounded, 
the  plaintiff  pleaded  tender  of  a  certain  sum  as  costs,  and  issue 
was  joined.  The  replication  alleged  a  poundbreach,  recaption, 
and  additional  costs  thereof,  amounting  to  a  sum  stated  not  in- 
cluded in  the  tender,  and  the  rejoinder  alleged  that  the  lawful 
additional  costs  were  so  included,  whereupon  issue  was  joined. 
Held,  the  affirmative  of  both  issues  was  on  the  plaintiff,  and  he 
was  entitled  to  open  and  close.^  The  defendant  alleged  that  the 
lawful  additional  costs  of  a  recaption  were  a  sum  stated,  and  they 
were  not  included  in  the  tender.  Rejoinder,  that  they  were  so 
included,  but  not  denying  that  they  were  the  sum  so  stated. 
Held,  the  plaintiff  was  estopped  to  deny  that  such  lawful  costs 
amounted  to  that  sum.*^ 

§  14.  In  replevin  against  a  field-driver  for  cattle  impounded  by 
him  for  going  at  large,  the  defendant  may  show,  not  only  that  he 
gave  the  plaintiff  the  notice  required  by  (Mass.)  Rev.  Sts.  c. 
113,  §  8,  but  also  that  he  posted  notices  according  to  the  pro- 
visions of  §  9  ;  but  the  plaintiff  cannot  prove  that  the  cattle 
were  not  suitably  provided  for,  or  were  ill-treated  in  the  pound  ; 
the  statute  imposing  this  responsibility  upon  the  pound-keeper, 
not  the  field-driver.' 

1  Adams  v.  Adams,  13  Pick.  384.  7  Pickard  r.  Howe,  12  Met.  198,  over- 

2  Per  Putnam,  J.,  13  Pick.  386.  ruling  Bruce  v.  Holden,  '21  Pick.  187;  and 

3  Field  r.  Jacobs,  12  Met.  118.  affirming  "Wild   v.    Skinner,   23  ib.   251. 
*  lb.  See    Kimball    r.  Adams.  3   N.    H,    182; 

5  Bills  i;.  Vose,  7  Post.  212.  Brown  v.  Smith,  1   ib.  36;   also,  Mass. 

6  Ib.  Gen.  Sts. 


CH.  11.]      REPLEVIN   IN   CASE   OF  DISTRESS,   IMPOUNDING,  ETC.  21 

§  15.  In  Massachusetts,  the  Rev.  Sts.  c.  11:1,  §  27,  do  not 
authorize  an  action  of  replevin  in  tlie  Court  of  Coninion  Pleas  in 
any  case  coming  within  the  provisions  of  §  17,  although  the 
value  exceeds  twenty  dollars.^  Where  a  writ  of  replevin  for  cat- 
tle, brought  originally  in  the  Court  of  Common  Picas,  alleged 
that  the  cattle  were  "  now  detained  in  the  town  pound ; "  and  the 
defendant  moved  that  the  action  be  dismissed,  on  the  ground  that 
it  was  brought  for  the  replevin  of  beasts  distrained  or  impounded, 
in  order  to  recover  a  penalty  or  forfeiture  supposed  to  have  been 
incurred  for  their  going  at  large,  or  to  obtain  satisfaction  for 
damages  alleged  to  have  been  done  by  them,  and  consequently 
that,  by  the  Rev.  Sts.  c.  113,  §  17,  the  action  should  have  been 
commenced  before  a  justice  of  the  peace:  held,  that  it  did  not 
appear  on  the  face  of  the  writ  that  the  action  was  brought  for 
any  of  the  causes  stated  in  §  17  of  the  same  chapter.  But  if  it 
appear  aliunde,  in  the  course  of  the  trial,  that  the  cause  of  action 
is  within  §  17,  a  motion  may  then  be  made,  and  the  action  dis- 
missed, on  the  ground  that  the  court  has  no  jurisdiction .^ 

§  16.  In  Connecticut,  it  is  not  essential  to  the  regularity  of  a 
writ  in  replevin,  that  the  bond  should  appear  at  length  on  the 
face  of  the  writ,  or  disclose  the  fact  that  the  property  belonged 
to  the  plaintiff,  or  had  been  impounded  or  distrained."^ 

§  17.  In  Massachusetts,  it  is  no  ground  for  dismissing  a  writ 
of  replevin,  that  two  cows,  included  therein,  are  appraised,  in 
the  appraisers'  certificate,  at  one  sum.^ 

§  18,  In  Vermont,  where  an  avowry  sets  forth  the  impounding 
of  cattle,  and  avers  that,  "  within  twenty-four  hours  thereafter, 
the  defendant  gave  legal  notice  of  the  said  impounding;  "  a  gen- 
eral demurrer  to  the  averment,  for  not  stating  the  manner  in 
which  the  notice  was  given,  is  insufficient.  But  where  the  avowry 
stated,  that  the  defendant  took  the  cattle  "  in  a  field  and  enclos- 
ure used  and  improved,"  ..."  the  soil  and  freehold  of  the  de- 
fendant," &c. ;  the  plea,  that  the  defendant  "  did  not  find  the  said 
cattle  in  any  field  of  the  defendant,  enclosed  with  a  legal  fence," 
and  concluded  to  the  country  ;  to  which  plea  the  defendant 
demurred  specially  because  the  plea  concluded  to  the  country  : 
held,  the  demurrer  was  well  taken.^ 

1  Saokett  r.  Kellogg,  2  Cusli.  88.     See  »  Watson  r.  Watson,  9  Conn.  140. 

Gen.  Sts.  *  Mansir  v.  Crosbv,  6  (iray,  884. 

••^  Sackett  v.  Kellogg,  2  Cush.  88.  »  Keith  v.  Eradfonl,  8U  Vt.  34. 


22 


REPLEVIN. 


[book  I. 


CHAPTER  III. 


DISTRESS    FOR   RENT. 


1.  General  principles  —  practice  in  differ-        2.  Pleading,  evidence,  verdict,  judgment, 
ent  States.  17.  Miscellaneous  points. 

§  1.  Replevin  is  also  the  appropriate  remedy  in  case  of  an 
unlawful  distress  for  rent.^  (a) 


1  See  Bloomer  ;;.  Jerkel,  8  Wend.  448 ; 
Lindon  r.  Collins,  Willes,  429 ;  Short  v. 
Hubbard,  2  Bing.  349 ;  Franciscus  v. 
Reigart,  4  Watts,  117 ;  IngersoU  v.  Ser- 
geant, 1  Whart.  337  ;  Banks  v.  Angell,  7 
Ad.  &    Ell.  843.  Kensil  v.  Chambers,  5 

(a)  In  New  York,  though  since  2  Rev. 
Sts.  529,  §  41  an  avowry  that  the  goods 
were  taken  by  way  of  distress  for  rent 
need  not  set  forth  the  landlord's  title  in 
detail,  nor  name  any  person  certain  as  the 
tenant ;  it  must  show  all  the  essential 
facts  giving  the  right  to  distrain.  An 
avowry,  that  the  goods  were  taken  by 
way  of  distress  for  rent  due  from  one  W., 
who  occupied  as  a  tenant  from  a  certain 
demise,  &c.,  but  not  stating  tenancy 
under  the  defendant  or  any  other  per- 
son from  wliom  he  derived  title,  is  insuffi- 
cient, inasmuch  as  it  does  not  show  that 
the  defendant  was  landlord.  Hill  i-.  Stock- 
ing, 6  Hill,  277.  See  Christman  i'.  Floyd, 
9  Wend.  340 ;  Burr  r.  Van  Buskirk,  3 
Cow.  263 ;  Webber  v.  Shearman,  6  Hill, 
20.  And  though  the  j  laintiff  plead  over, 
thus  assuming  that  the  relation  of  land- 
lord and  tenant  is  sufficiently  set  forth,  and 
the  defendant  obtain  a  verdict  and  judg- 
ment;  the  defect  in  the  avowry  is  fatal, 
on  error.  Hill  v.  Stocking,  6  Hill,  277. 
An  avowry,  setting  up  distress  on  par- 
cel of  the  demised  premises,  must  show 
the  facts  essential  to  the  landlord's  right 
to  distrain  with  as  much  certainty  as  an 
avowry  relating  to  the  whole.  lb.  The 
omission  of  the  requisite  averments  can- 
not be  aided  by  setting  forth  the  distress- 
warrant  and  affidavit.  lb.  But  it  is  not 
necessary  to  set  forth  the  warrant  and 
affidavit  in  the  avowry  ;  a  general  aver- 
ment of  the  distress  is  sufficient.  lb. 


Phila.  64  ;  Cossey  v.  Diggons,  2  B.  &  A. 
546  ;  Forty  v.  Imber,  6  E.  434 ;  Roberts 
V.  Snell,  1  Man.  &  G.  577;  Bull  v.  Tibbs, 
8  T.  R.  327;  Smith  v.  Grant,  56  Maine, 
255  ;  M'Neil  v.  Barker,  40  Geo.  26. 


In  Virginia,  it  has  been  held  that,  by 
statute,  replevin  lies  only  in  case  of  dis- 
tress for  rent.  But  such  statute  is  not 
retrospective.  Vaiden  v.  Bell,  3  Rand.  448. 

In  Connecticut,  that  it  lies  only  in 
case  of  attachment  and  distress.  Watson 
v.  Watson,  9  Conn.  140.     But  see  p.  28. 

In  Mississippi,  replevin  has  been  held 
to  lie  only  in  cases  of  distress  for  rent. 
Wheelock  v.  Cozzens,  6  How.  279. 

The  provision  of  (Ky.)  Rev.  Sts.  c.  56, 
art.  2,  §  28,  that  a  distress  for  rent  may 
be  replevied  for  three  months,  &c  ,  is  not 
repealed  by  the  Civil  Code,  §§  721,  722. 
Dean  v.  Ball,  3  Bush,  502.  A  late  case 
in  Penns^'lvania  is  as  follows  :  — 

Opinion  by  Stroud,  J.  —  The  plaintiff 
was  tenant  of  Brisbane,  who  alleged  that 
rent  was  due  him,  and  he  therefore  au- 
thorized a  distress  of  the  tenant's  goods. 
This  was  made,  and  the  goods  sold,  and  the 
money  made.  The  tenancy  was  proved 
by  the  plaintiff,  and  the  sale  of  his  goods. 
There  was  a  dispute  on  other  matters,  but 
it  is  unnecessary  to  say  any  thing  in  respect 
to  these.  For,  according  to  Caldcleugh  v. 
HoUingsworth,  8  W.  &  S.  302,  (issuming 
that  notice  of  distraint  had  been  given  to 
the  tenant,  and  a  proper  appraisement  of 
goods  made,  the  only  remedy  left  to  the 
tenant  is  to  sue  out  a  writ  of  replevin. 
The  plaintiff  made  no  complaint  of  any 
omission  in  these  particulars  ;  but,  unfortu- 
nately, I  do  not  find  any  evidence  at  all 
was  given  on  the  subject;  and  these  acts 


CH.  III.]  DISTRESS   FOR   RENT.  23 

§  2.  No  venue  is  necessary  to  a  demise,  in  an  avowry,  for  a  dis- 
tress, <fec.^ 

§  3.  On  the  issue  of  "  no  rent  in  arrear,"  the  title  of  tlie  plain- 
tiff does  not  come  in  question.''^ 

§  4.  A  defendant  cannot  make  cognizance,  as  bailiff  of  his 
father,  for  rent  in  arrear  due  to  his  father,  where  the  distress 
had  been  made  in  the  name  and  in  the  riglit  of  the  avowant, 
notwithstanding  he  had  authority  from  his  father  to  make  the 
distress/^ 

§  5.  Where  the  defendant  put  in  five  cognizances,  acknowledg- 
ing the  taking  of  goods  for  distress,  three  of  them  good  and  two 
bad,  and  a  general  judgment  of  retorno  hahendo  was  entered,  on 
default  of  the  plaintiff  to  plead ;  the  judgment  was  reversed  for 
defective  pleading.^ 

§  6.  The  defendant  may  avow,  generally,  for  rent  in  arrear ; 
but,  if  he  state  the  lease  specially,  he  must  state  it  truly .^  So 
the  time  at  which  the  rent  was  payable,  and  the  amount  due, 
must  be  proved  as  laid.*"  So  in  New  York,  if  the  defendant 
set  forth  the  name  of  the  person  claimed  to  be  tenant,  instead  of 
availing  himself  of  the  statute  in  this  particular,  he  will  be  bound 
to  prove  the  allegation  as  laidJ  So  where  three  defendants  avow 
for  rent  in  arrear,  and  a  fourth  makes  cognizance,  proof  of  a 
demise  by  one  does  not  support  the  issue.^ 

1  Davis  V.  Tyler,  18  Johns.  490.  5  Taylor  v.  Moore,  3  Harring.  6. 

2  Williams  v.  Smith,   10  S.  &  R.  203.  6  Waltman  v.  Allison,  10  Harr,  464. 
8  Swearinger  v.  Magruder,  4  Har.  &  "^  Hill  v.  Stocking,  6  Hill,  277. 

M'Hen.  347.  8  Ewing  v.  Vanarsdall,  1  S.  &  R.  370. 

*  Pike  V.  Gandall,  9  Wend.  149. 

should  have  been  sitown  affirmatively,  or  the  Chief  Justice,  as  may  he  seen  by  his 
admitted  (jn  the  trial.  The  nonsuit  which  opinion  in  Wike  v.  Ligiitner,  1  Rawle, 
was  entered  was  at  least  premature,  289,  and  followed  by  Oliphant  v.  Smith, 
and  must,  therefore,  be  set  aside.  Some  3  Pa.  Rep.  180 ;  Criswcll  v.  Cleugli,  3 
doubt  has  been  expressed  as  to  tlie  Watts,  oJiO ;  Hellings  r.  Com.,  5  R.  (J4 ; 
ground  \\\wn  whicli  tlie  Cliief  Justice  Frombcrger  v.  Greiner,  5  Wharton,  357  ; 
(Gib.-ion)  rested  in  the  case  of  Caldcleugii  Spigelmoyer  i;.  Walter,  3  W.  &  S.  540. 
V.  HoUingsworth,  in  stating  tiiat  where  The  nonsuit  must  be  set  aside.  —  Sass- 
the  requirements  of  the  Act  of  1772  had  man  r.  Brisbane  and  Griffith;  Leg.  In- 
been    complied    with,    the    tenant   "  was  tell.,  July  3,  18(19. 

bound  to  jiroceed  by  replevin,  or  not  at  Replevin  will  not  lie  for  chattels  dis- 

all."    The  c;iso  of  Hriggs  r.  Large,  30  P.  S.  trained  for  rent  in  arrear,  and  sold  liy  tiie 

R.  287,  throws  some  light  on  the  question.  baiHtt",  after  an  election  and  appraisement 

But  I  have  no  doubt  that  he  had  in  mind  under  the   (Pa.)    Debtors'  Act  of  1849; 

the    13th    section   of    the   Act   of    1806,  the  remedy  of  tlie  claimants  is  against 

which  forbids  recourse  to  a  common-law  the  party  depriving  them  of  their  rigiits. 

remedy,  wherever  a  statutory  one  has  been  Bonsall  i'.  Comly,  44  Penn.  442. 
provided.    This  was  a  favorite  doctrine  of 


24  REPLEVIN.  [book  I. 

§  7.  If  the  plea  to  such  an  avowry  be,  that  the  tenancy  of  the 
person  named  had  ceased,  by  assignment,  <fec,,  before  the  time  for 
which  the  rent  accrued,  and  issue  be  joined  thereon ;  the  plaintiff 
may  prove  the  allegation,  though,  independent  of  the  state  of  the 
pleadings,  and  upon  the  merits  as  disclosed  by  the  evidence,  the 
allegation  appears  to  be  immaterial.^  So,  as  we  have  seen, 
the  defendant  may  avow,  generally,  for  rent,  and  adapt  his  proof 
to  the  avowry .2  So,  in  replevin  for  goods  distrained  for  rent, 
the  defendant  avowing  the  distress  may  recover  a  less  sum  than 
the  avowry  alleges  to  be  due.  The  avowry  need  not  state  the 
exact  amount  of  rent  in  arrear.  The  amount  unpaid  is  not 
descriptive  of  the  identity  of  the  obligation  out  of  which  the 
right  to  a  redelivery  of  the  goods  arises.^ 

§  8.  In  replevin  for  taking  the  goods  of  the  plaintiff  in  a  house 
and  close,  the  defendant  made  separate  avowries  as  to  the  house 
and  close,  avowing  the  taking  in  each  as  for  rent  in  arrear,  in 
respect  of  each,  to  which  avowries  the  plaintiff  pleaded  in  bar, 
that  the  defendant  took  one  joint  distress  upon  the  house  and 
close  for  and  in  respect  of  the  several  arrears  of  rent.  Held, 
the  plea  was  bud.* 

§  9.  Where  a  plaintiff  in  replevin,  to  an  avowry  for  rent,  pleads 
a  to7'tious  eviction  by  the  landlord  ;  such  plea  is  not  sustained  by 
proof,  that  the  landlord  entered  by  virtue  of  summary  proceed- 
ings under  the  landlord  and  tenant  act  for  non-payment  of  the 
rent.  Although  such  entry  be  found  by  a  special  verdict,  the 
landlord,  under  such  verdict,  is  entitled  to  a  judgment,  no7i  ob- 
stante veredicto.^ 

§  10.  A  set-off  of  repairs  cannot  be  pleaded  to  an  avowry.^  But 
such  plea  ought  to  be  objected  to  by  demurrer." 

§  11.  On  a  distress  for  rent  in  arrear,  at  a  share  rent,  a  wit- 
ness, who  examined  the  crop  to  form  an  opinion  as  to  quality, 
may  give  that  opinion  in  evidence.^ 

§  12.  A  verdict  in  favor  of  the  defendant,  both  on  the  plea  of 

1  Hill  V.  Stockinfj,  6  Hill,  277.  accuratelv    stated.     Phipps   v.   Boyd,    54 

2  King  V.  Lambcien,  4  Harrini?.  283.  Penn.  342. 

3  Barr  ?;.  Huglies,  44  Penn.  516.  (Held  *  Phillips  v.  Whitsed,  6  Jur.  (N.  S.) 
not  to  be  in  conflict  with  the  case  of  Walt-  727  ;  29  L.  J.,  Q.  B.  1G4. 

man  v.  Allison,  10  Barr,  464,  which  "  de-  ^  McCarty  v.  Hudsons,  24  Wend.  291. 

cides  that  only  matters  descriptive  of  the  ^  GosUin  v.  Eeddin,  3  Har.  9. 

contract   of   demise   must   be  proved   as  "^  lb. 

laid.")     But  the   rent  reserved  must  be  ^  Townsend  v.  Bon  will,  5  Har.  474. 


CH.  III.]  DISTRESS  FOR   RENT.  "25 

non  cepit  and  an  avowry  for  rent,  is  erroneous.  If  tlie  avowry  is 
sustaiiiofl,  tlie  verdict  on  the  issue  of  7ion  cepit  should  be  fur  the 
plaintilf.i 

§  13.  On  an  avowry  for  rent  in  arrear,  judgment  is  for  the  sum 
found  due  for  rent,  with  costs,  ctc.^ 

§  14.  In  Delaware,  the  value  of  a  rent  in  kind  may  be  found 
by  the  jury  Avithout  appraisers.-'^ 

§  15.  In  Mississippi,  by  statute,  when  property  is  distrained 
for  rent,  a  claimant  may  replevy  it,  and,  if  he  be  cast  in  the  suit, 
judgment  shall  be  entered  against  him  for  double  the  amount  of 
the  rent ;  but,  to  authorize  such  judgment,  the  property  must  be 
replevied  or  delivered  to  the  claimant.* 

§  16.  In  Virginia,  the  court  will  hear  evidence  after  verdict, 
tending  to  show  that  the  landlord  distrained  for  more  rent  than 
was  due,  in  order  to  avoid  the  entry  of  judgment  for  double  the 
value  of  the  rent,  and  confine  it  to  the  rent  only.^ 

§  17.  Replevin  lies  by  a  tenant  against  his  landlord,  upon  ten- 
der of  the  rent  in  arrear  after  levy  of  the  distress,  but  before 
removal  or  impounding  of  the  goods.*^ 

§  18.  In  case  of  rent  and  an  avowry,  the  amount  is  the  only 
question,  and  the  damages  are  nominal.' 

§  19.  To  an  avowry,  a  plaintiff  pleaded  a  prior  seizure  under 
a  writ  of  replevin  issued  in  his  favor  against  the  tenant,  and  that 
the  defendant  took  the  goods  before  a  reasonable  time  had 
elapsed  for  their  removal ;  but  not  that  any  affidavit  or  bond  was 
ever  delivered  to  the  officer  by  whom  the  writ  was  executed. 
Held  bad.  And,  it  seems,  after  the  seizure  of  property  on 
demised  premises  by  a  writ  of  replevin,  it  is  to  be  deemed  in 
custodid  legis,  and  is  not  liable  to  distress  for  rent  until  a  reason- 
able time  for  its  removal  has  elapsed.^ 

§  20.  An  avowry  in  replevin,  that  the  goods  were  taken  by 
way  of  distress  for  rent,  need  not  expressly  #how  that  the  dis- 
tress was  made  by  an  officer,  nor  that  the  proper  allidavit  was 
annexed  to  the  warrant.^ 

§  21.  In  replevin   for  goods  distrained   for  rent,  against  the 

1  Hill  V.  Stocking,  G  Hill,  277.  5  Maxwell  v.  Light,  1  Call,  117. 

'^  Clark   V.  Adair,  :5    liar.    113  ;  Caltl-  «  Hilson  r.  Blain,  '2  Bai.  KIS. 

well  /•.  Clcadon,  ib.  4*20.  "J  Pevton  i:  Robertson,  U  Wheat.  527. 

3  Crawford  v.  Wri-ht,  5  Har.  50.  8  MHiiken  v.  Sevle,  0  Hill,  ti'J:'.. 

*  riiicliard  v.  RandcU,  I  How.  508.  9  Webber  v.  Shearman,  G  Hill,  20. 


26  REPLEVIN.  [book   I. 

officer  serving  the  warrant,  the  defendant  pleaded  the  warrant  in 
justification,  and  the  replication  admitted  the  warrant,  and  did 
not  deny  that  there  was  any  rent  in  arrear  and  due  when  the 
warrant  issued,  but  did  deny  that  any  was  due  on  two  certain 
days,  neither  of  which  was  named  in  the  warrant  or  plea  of  the 
defendant.  On  demurrer,  the  replication  was  held  insufficient, 
and  the  defendant  entitled  to  a  return. ^ 

1  Powell  V.  Triplett,  6  B.  Mon.  420. 


CH.  IV.]  PROPERTY   AND   POSSESSION   NECESSARY,    ETC. 


27 


CHAPTER   lY. 


PROPERTY   AND    POSSESSION    NECESSARY   TO   MAINTAIN    REPLEVIN. 


1.  Right  of  possession  necessary  and  suffi- 
cient. 

2.  Qualified  possession  or  special  property. 
6.  PlaiiitifT  must    prevail   upon   his   own 

title. 

10.  Pleiuling,  evidence,  &c.,  in  relation  to 
property  uud  possession. 


14.  Ciises  of  manufacture  to  order,  incom- 
plete sale  or  delivery,  &c. 

20.  In  case  of  the  decease  of  a  party  inter- 
ested. 

21.  Title  gained  by  service  of  a  writ  of 
replevin  and  bond;  sale  by  the  plaintiff  in 
replevin. 

23.  Title  and  possession  of  the  defendant. 


§  1.  It  is  the  prevailing  and  almost  universal  rule,  that  the 
plaintiff  in  replevin  must  have  possession,  or  a  right  to  immediate 
possession  ;  and  also  that  such  right,  as  against  a  wrong-doer, 
without  reference  to  property  or  actual  possession,  will  be  suffi- 
cient  to   maintain    the   action.^  (a)     Thus  a  mortgagee   cannot 


1  Berthold  v.  Fox,  13  Minn.  501 ;  Wes- 
pole  r.  Sniitli,  4  Blackf.  304;  Ingraliam  v. 
Martin,  3  Sliep.  373;  Moorman  v.  Quick, 
20  Ind.  1G7  ;  SIkmUIoh  r.  Knott,  2  Swan, 
358;  46  Maine,  408;  Prater  v.  Frazier,  6 
Eng.  249;  7  Jones,  251;  Noble  v.  Park- 

(a)  Upon  this  ground,  damages  can 
only  be  given  for  interference  with  the 
possession.  Therefore  (in  Maryland),  in 
a  suit  on  the  bond  for  damages,  the  de- 
fendant cannot  show  title,  since  some 
title  in  tlie  plaintiff  lias  been  found  in  the 
replevin  suit;  but  he  may  sliow,  in  miti- 
gation of  damages,  that  the  jjiaintiff's 
title  was  to  a  short  possession  only. 
Cumberland,  &c.  v.  Tilghman,  13  Md. 
74. 

In  Minnesota,  in  the  action  substituted 
for  replevin,  the  plaintiff  must  allege 
such  title  as  shows  him  entitle<l  to  the 
possession.  Kcv.  Sts.  p.  :]40,  c.  70,  §  80- 
88,  do  not  change  this  rule.  Loomis  r. 
Youle,  1  Minn.  175.  Where,  upon  a  jilea 
of  711)11  ditinct,  the  verdict  was  that  the 
defendant  "  did  unlawfully  detain  the 
goods,"  but  was  silent  as  to  tlie  owner- 
ship ;  the  judgment  only  decided  the 
right  to  retain  the  goods.  Emmons  v. 
Dowe,  2  Wis.  322. 

In  replevin,  tlie  question  of  vdlue  is  not 
in  issue.     Thomas  v.  ISpofford,  4G  Mame, 


man,  24  Ind.  414.  But  see  Pratt  v.  Ep- 
perlv,  6  Pick.  42;  Dunham  v.  Wvckoff,  3 
Weiid.  280;  Chinn  r.  l^ussell,  2  Blackf, 
172;  Williams  v.  West,  2  Oiiio  (N.  S.), 
82;  Warner  v.  Matthews,  18  Hi.  83; 
M'Coy  V.  Cadle,  4  Iowa,  657. 

408.  The  rule  stated  in  the  text  generally 
prevails  in  American  law.  The  following 
are  the  slight  modifications  of  it  in  some 
of  the  States  :  — 

In  New  York,  in  replevin  in  the  cfpit, 
where  the  issue  is  upon  the  i)laintitl"3 
projierty  he  must  ])rove  a  right  to  posses- 
sion. Kedman  r.  Ilcndrii'ks,  1  Sandf.  32. 
Where  a  chattel  is  torti(Jusly  taken  from 
the  actual  or  constructive  possession  of 
the  owner,  he  niiiy,  at  his  election,  bring 
trespass  de  bon.  as/ior.  or  replevin  in  the 
cepit.  Ely  V.  Ehle,  3  Comst.  506.  The 
law  reqiiires  a  legal  title  or  special  prop- 
erty, with  right  of  possession.  Dod- 
worth  r.  Jones,  4  Duer,  201  ;  {  Hill  v. 
Robinson,  10  Ark.  *.I0.)  The  jdaintiffmust 
have  the  general  or  special  property,  and 
the  right  of  i)ossession.  He  must  be  the 
owner,  or  lawfully  entitled  to  possession 
by  virtue  of  special  jiroperty.  Korkwell 
r.  Saunders,  I'J  Barb.  473.  And  the 
owner  is  in  constructive  possession  within 
this  rule,  although  a  bailee  may  have  ac- 
tual possession.     Ely   v.  Ehle,  3  Comst. 


28 


REPLEVIN. 


[book  I. 


replevy  the  property,  where  he  has  not  the  right  of  possession, 
till  breach  of  condition. ^  (a) 


1  Curd  v.  Wunder,  5  Ohio  (N.  S.),  02. 
See,  further,  Bo<i;ar(l  i\  Jones,  9  Huinpli. 
739;  Smith  r.  Williamson,  1  liar.  & 
J.    147 :    Bradley    v.   Michael,   1    Smith, 

506.  A  declaration  in  replevin  for  takinj? 
and  detaining  goods  must  show  that  the 
plaintiff"  has  either  a  general  or  special 
property  in  them.  An  allegation  that 
he  is  enlith'd  to  the  /losspssion  will  not  an- 
swer. Pattison  v.  Adams,  7  Hill,  126. 
Where  goods  are  in  the  hands  of  a  factor, 
who  has  a  lien  on  them  for  advances, 
the  owner  of  the  goods  has  not  sufficient 
possession  to  maintain  replevin.  Wood  v. 
Orser,  25  N.  Y.  (11   Smith)  348. 

In  Arkansas,  it  is  not  sufficient  to  prove 
that  the  plaintiff  had  a  legal  title,  but  he 
must  also  show  that  he  was  entitled  to 
possession,  and  that  the  defendant  wrong- 
fully detained  it.  Beebe  v.  DeBaun,  3 
Eng.  510.  Though  it  is  not  necessary 
that  the  plaintifi'  should  once  liave  had 
actual  possession  and  bailed  it,  &c.  lb. 
Where  the  plaintiff  has  the  right  of  prop- 
erty, either  general  or  special,  and  of  im- 
mediate possession,  of  a  chattel  taken  or 
detained  by  the  defendant,  the  action  of 
replevin  in  the  detinet  lies,  as  now  regu- 
lated by  statute.  Cox  v.  Marrow,  14  Ark. 
603  ;  Wilson  v.  Royston,  2  Pike,  315. 

In  North  Carolina,  replevin  will  only 
lie  in  the  case  of  an  actual  taking  out  of 
the  possession  of  the  plaintiff.  Cum- 
mings  V.  M'Gill,  2  Murph.  357.  As 
against  wrong-doers  and  trespassers,  a 
paramount  right  of  property  is  not  neces- 
sary to  support  an  action  of  replevin  ; 
but  only  a  naked  possession,  or  a  right 
of  possession  coupled  with  the  beneficial 
interest.  Freshwater  v.  Nichols,  7  Jones, 
251. 

In  Maine,  either  a  general  or  special 
property  will  sustain  an  action  of  re- 
plevin. As  between  a  school-district  and  a 
stranger,  the  possession  of  the  records  by 
the  clerk  is  the  possession  of  the  district, 
and  replevin  may  be  maintained  in  the 
name  of  the  corporation.  School,  &c.  v. 
Lord,  44  Maine,  374. 

In  Missouri,  replevin  has  been  held  to 
require  general  or  special  property  ;  mere 
possession  is  insufficient.  Broadwater  v. 
Darne,  10  Mis.  277.  But  a  later  case 
decides,  that,  to  maintain  an  action  to 
recover  specific  personal  property,  the 
plaintiff  must  have  the  title  or  right  of 
possession.  Pilkington  v.  Trigg,  28  Mis. 
95.  And  a  still  later  one,  that,  in  replevin, 
where  the  plaintiff's  title  is  denied,  naked 
possession  is  not  sufficient  to  maintain  an 


346;  Collins  v.  Evans,  15  Pick.  63; 
Wheeler  r.  Train,  3  ib.  255;  Baker  v. 
Fales,  16  Mass.  147. 


action  ;  it  must  appear  that  he  had  a 
right  to  possession.  Gartside  v.  Nixon, 
43  Mis.  138. 

In  South  Carolina,  the  plaintiff  must 
allege  that  the  goods  distrained  were  his 
own,  or  were  taken  from  his  possession. 
8  Rich.  24. 

In  Indiana,  a  general  or  special  prop- 
erty in  goods,  accompanied  with  posses- 
sion, either  actual  or  constructive,  or  a 
right  to  inunediate  possession,  and  unlaw- 
ful taking  or  detention,  is  sufficient  to 
support  replevin.  Walpole  ly.  Smith,  4 
Blackf.  304  ;  Clark  v.  Heck,  17  Ind.  281  ; 
jMorgan  v.  Quick,  20  Ind.  67.  In  replevin 
for  a  horse,  the  plaintiff  cannot  recover, 
without  a  general  or  special  property,  and 
a  right  to  immediate  possession  (and 
either  an  unlawful  taking  or  detention  by 
the  defendant).  Clark  v.  Heck,  17  Ind. 
281. 

In  Iowa,  one  who  purchases  and 
takes  possession  of  personal  property, 
subject  to  mortgages  thereon,  which  he 
assumes  to  pay,  cannot  recover,  in  an 
action  of  replevin,  brought  in  his  own 
name,  upon  the  ground  that  he  is  the 
agent  of  the  mortgagees.  McNorton  v. 
Akers,  24  Iowa,  369.  The  plaintiff  can- 
not recover,  unless  he  shows  himself  to 
have  been  entitled  to  possession  at  the 
time  of  suit  brought.  Alden  v.  Carver, 
13  Iowa,  253. 

In  Illinois,  a  plaintiff  suing  as  the  sole 
owner  must  prove  that  he  was  such  and 
entitled  to  exclusive  possession.  Under- 
wood V.  White,  45  111.  437. 

In  Vermont,  replevin  can  be  maintained 
under  Gen.  Sts.  p.  320,  when  the  plain- 
tiff is  entitled  to  possession  as  against  the 
defendant.  He  need  not  be  the  owner. 
Sprague  v.  Clark,  41  Vt.  6. 

In  Pennsylvania,  replevin  lies  wher- 
ever one  man  claims  goods  in  the  posses- 
sion of  another,  without  regard  to  the 
manner  in  which  the  possession  was  ob- 
tained.    Herdic  v.  Young,  55  Penn.  176. 

In  Connecticut,  in  replevin  for  goods 
attached,  the  plaintiff  can  recover  only 
by  proving  himself  to  be  the  owner  of 
them.  Tomlinson  v.  Collins,  20  Conn. 
364. 

(«)  The  assignee  of  a  chattel  mortgage 
may,  upon  condition  broken,  maintain  re- 
plevin for  the  property.  Barbour  v. 
White,  37  111.  164.    A  plaintiff  in  replevin, 


CH.  IV.]  PROPERTY   AND    POSSESSION   NECESSARY,    ETC. 


29 


§  1  a.  Where  property  has  been  stolen,  the  trespasser  or  his 
vendee  cannot  maintain  replevin  for  the  detention  of  it.^ 

§  1  Z>.  Adverse  possession  of  a  horse,  which  had  strayed  from 
the  original  owner,  for  the  full  term  of  limitation  against  any 
claim,  gives  a  good  title  tiiereto,  sufticientto  sustain  replevin  for 
him  in  the  hands  of  the  original  owner.'-^  So  when  the  plaintiff, 
being  in  possession  of  a  stray  horse  which  he  iiad  never  posted, 
bailed  it  to  the  defendant,  who  failed  to  return  it  according  to 
the  bailment;  the  plaintiff  is  entitled  to  a  judgment  for  the  horse, 
in  an  action  for  its  recovery,  or,  if  a  return  could  not  be  had,  for 
its  value,  as  assessed  by  the  jury.-"^ 

§  1  c.  The  mere  act  of  capturing,  by  a  federal  scout,  and  jjlac- 
ing  under  military  control,  the  private  property  of  a  citizen 
residing  within  the  permanent  lines  of  occupation  of  the  federal 
army,  did  not  divest  the  owner  of  his  title  so  as  to  prevent  his 
resisting  replevin.* 

§  ii.  A  qualified  possession  sustains  replevin.'^  So  one  who  has 
a  special  property  in  a  chattel  may  bring  replevin  against  the 
seller  of  the  chattel,  for  refusing  to  deliver  it,'^ 

§  3.  In  replevin  between  the  general  owner  of  property  and 
one  having  a  special  interest  therein,  the  measure  of  damages  in 
favor  of  the  latter  is  the  value  of  such  interest." 

§  4.  By  agreement  between  A  and  B,  A  was  to  furnish  funds 
to  purchase,  in  his  name,  a  certain  quantity  of  timber  from  differ- 
ent persons,  to  be  selected  in  the  woods,  standing,  by  B,  and  to 
be  cut,  hewn,  rafted,  and  delivered  by  him  at  T.,  for  which  he 
was  to  receive  so  much  per  cubic  foot.  Held,  A  had  the  general 
property  in  timber  got  out  under  the  contract,  and  which  B  was 


1  Parham  v.  Kilcv,  4  Cold.  5. 

2  Hicks  V.  Fliiit,  ill  Ark.  4G3. 

8  Borron's  v.  Laiules,  1  Duv.  299. 
*  Taylor  v.  Jenkins,  24  Ark.  337. 

the  second  niort.iraf,'ee,  the  defendant  lieinjj 
the  first,  moved  to  stay  ])roceedin<;s,  nntil 
an  action,  instituted  sid)se(iuently  to  the 
replevin,  to  jji-rt'i-ct  liis  cause  of  action 
therein,  siioiild  he  determined.  Held, 
the  motion  must  he  denied,  as  the  i)lain- 
tifl's  atlidiivit  failed  to  show  that  his 
mortgage  deht  was  due,  or  that  his  mort- 
liR'^e  entitled  him  to  take  possession  he- 
tore  the  deht  should  mature.  .Smith  r. 
Coolhaujih,  I'J  Wis.  KIG.  A  sold  B  a 
cow,  imder  a  written  ajireenieiit  that  A 
should  keep  her  as  long  as  15  thought 
best,  and  under  an  oral  agreement  that  A 


5  Mead  r.  Kildav,  2AVMtts,  110. 

6  Woods  i:  >'i.\on,  Addis.  l:;i. 

^  Khoads  v.  Wouds,  41  Barh.  471. 

might  redeem  on  repaying  tlie  jiurclmse- 
money,  the  written  agreement  heing  in- 
tended only  as  security  for  the  lf)an  of  the 
so-called  pnrchase-moiie}'.  Jlehl,  A  might 
maintain  replevin  for  the  cow,  if  she 
was  unlawfully  taken  or  detained  from 
him.  Wills  r'  Barrister,  86  Vt.  220.  A 
lessee  of  land,  who  had  the  privilege  of 
removing  huildings  at  the  end  of  the  term, 
mortgaged  a  huilding.  Held,  his  widow, 
in  a  replevin  suit  hy  the  mortgagee  for 
the  mortgaged  projierty,  could  not  set  up 
a  homestead  claim  or  the  landlord's  title. 
Ballou  V.  Jones,  37  111.  95. 


30  REPLEVIN.  [book   I. 

transporting  to  T.,  but  no  riglit  of  possession.  That,  as  between 
the  parties,  B  had  a  special  property  and  right  of  possession, 
liable  to  levy  and  sale  on  execution  ;  and,  in  an  action  of  replevin 
brought  by  C,  an  execution  purchaser,  against  B,  A's  general 
property  was  not  a  good  defence.  That  C  was  entitled  to  re- 
cover, having  the  riglit  of  possession  as  against  B,  and  the  right 
of  property,  united ;  but,  as  he  had  gained  only  a  special  prop- 
erty, he  could  only  have  a  verdict  finding  the  property  in  him, 
and  an  assessment  of  the  value  at  the  amount  of  B's  special 
property  therein,  to  wit,  the  agreed  price  per  foot,  deducting  the 
cost  of  transportation  to  T.  Also,  that  the  case  presented  merely 
a  question  of  law  for  the  court.^ 

§  5.  The  assignee  of  goods  under  attachment,  having  paid  the 
claim  of  the  first  attaching  creditor,  may,  upon  giving  the  officer 
notice  of  such  payment  and  of  the  assignment,  and  demanding 
possession  of  the  goods,  maintain  replevin  therefor  against  him, 
the  delivery  of  the  instrument  being  a  suflScient  delivery  of  the 
goods.2  -g^^^  a  receiptor  to  an  officer,  or  any  other  bailee  for 
safe-keeping  merely,  has  not  sufficient  interest  to  maintain  re- 
plevin.^ 

§  6.  A  plaintiff  in  replevin,  as  in  other  actions,  must  prevail 
on  the  strength  of  his  own  title ;  and,  if  he  fails  to  show  a  title 
in  himself,  it  is  immaterial  whether  the  defendant  has  or  has  not 
any  title,  and  possession  should  be  restored  to  him  ;  *  (a)  and  the 
burden  is  upon  him  to  prove  his  title,  more  especially  if  property 
in  a  stranger  is  pleaded,  although  not  proved.^  The  plaintiff 
cannot  rely  on  a  merely  colorable  sale  to  himself.^  But,  if  he 
show  a  primd  facie  right,  he  must  recover  as  against  all  who  do 
not  prove  better  title." 

§  7.  In  an  action  of  replevin,  it  appeared  that  A,  the  former 
owner  of  the  property,  became  an  insolvent  debtor,  but  his  as- 
signee had  taken  no  possession  and  made  no  conveyance  of  the 

1  Weaver  r.  Darby,  42  Barb.  411.  ■*  Johnson  r.  Neale,  6  Allen,  227;  Stan- 

2  Whipple  V.  Thayer,  16  Pick.  25.  ley  r.  Neale,  98  Mass.  348. 

!*  Warren  v.  Leland,  9  Mass.  265 ;  Per-  ^  Sinicoke  v.  Frederick,  1  Cart.  54. 

ley  V.  Foster,  ib.  112;  Waterman  v.  Rob-  ^  Dawson  v.  Wetherbee,  16  Gray,  123. 

inson,  5  ib.  303.     See  Simpson  v.  McFar-  "^  Ingersol  i".  Emmerson,  1  Cart.  76. 
land,  18  Pick.  427. 

(a)  In  an  action  of  replevin  for  a  span  the  statutes  of  Minnesota  ;  he  must  prove 

of  horses  levied  upon  as  the  property  of  a  his  own  title  as  alleged  in  his  complaint, 

third    party  :    held,    the    plaintiff   could  and  could  not  sustain  himself  by  proving 

not  claim  that  the  horses  were  exempt  title  in  another  party.     Howland  v.  Ful- 

from  levy  against  such  third  person  under  ler,  8  Minn.  50. 


en.  IV.]  PROPERTY   AND    POSSESSION   NECESSARY,   ETC-  31 

property.  The  plaintiff  claimed  under  a  conveyance  from  B 
prior  to  the  insolvency.  The  action  was  brought  against  a  sheriff 
who  attached  the  property,  after  the  insolvency,  as  belonging  to  A, 
in  whose  possession  it  remained.  It  was  held,  that,  whether  it 
was  attachable  or  not,  the  plaintiff  could  not  maintain  the  action, 
as  he  could  derive  title  only  from  the  assignee  ;  and  that  he 
must,  like  plaintiffs  in  other  actions,  maintain  his  case  on  the 
strength  of  his  own  title  or  claim,  in  the  absence  of  which  proof 
it  is  immaterial  whether  the  defendant  has  or  has  not  any  title. ^ 

§  8.  So  replevin  cannot  be  maintained,  merely  by  evidence  of 
the  defendant's  having  gone  into  insolvency,  and  the  failure  of 
his  assignee  to  appear  and  defend.  The  plaintiff  is  still  bound 
to  give  affirmative  proof  of  title.  "  Neither  the  assignment  nor 
omission  to  interpose  could  oblige  the  defendant,  without  being 
heard,  to  suffer  judgment  against  him  in  favor  of  those  who 
prove  no  title,  and  from  which  a  certificate  would  not  protect 
him."  2 

§  9.  An  officer,  upon  a  writ  against  A,  in  favor  of  B,  attached 
personal  property.  C  served  upon  him  and  upon  B  a  notice  that 
a  replevin  suit  would  be  brought,  and  the  next  day  the  writ  of 
replevin  was  served  upon  the  officer.  After  the  notice,  and 
before  service  of  the  replevin  writ,  the  attachment  suit  was 
withdrawn,  and  the  officer  delivered  the  property  to  A.  C  applied 
for  a  mandamus,  to  compel  the  officer  to  deliver  the  property  to 
the  officer  serving  the  writ  of  replevin  ;  alleging  that  C  was  in 
possession  of  the  property  at  the  time  it  was  attached,  but  not 
that  he  was  the  owner,  nor  that  the  writ  of  replevin  alleged  such 
ownership.  The  officer  returned  upon  the  writ  of  mandamus 
the  withdrawal  of  the  attachment  suit,  and  the  delivery  of  the 
property  to  A.  To  this  C  demurred.  Held  :  1.  That  the  return 
would  seem  to  be  sufficient,  since  the  object  of  the  statute,  pro- 
viding for  the  action  of  replevin  in  such  cases,  was  to  give  a 
claimant  of  the  property  an  opportunity  to  try  the  question  of 
title,  and  C  could  try  this  question  in  a  suit  against  the  original 
defendant  as  well  as  in  the  replevin  suit.  2.  But,  whether  the 
return  was  in  itself  sufficient  or  not,  it  was  sufficient  for  the 
application,  which  was  clearly  demurrable  in  not  alleging  that 
the  property  sought   to   be   replevied   belonged  to   the  plaintiff 

1  Johnson  r.  Neale,  6  Allen,  227.  '^  Hallett  r.  Fowler,   8  Allen,  93,  per 

Metcalf,  J.,  94. 


32  REPLEVIN.  [book   I. 

therein.^  (It  was  doubted  whether  the  application  was  not  in- 
sufficient, in  not  also  averring  that  the  writ  of  replevin  contained 
an  allegation  of  property  in  the  plaintiff.) 

§  10.  The  declaration  stated  the  chattels  to  be  the  property  of 
the  plaintiff,  and  the  plea,  to  an  avowry  and  cognizance,  that 
the  property  and  possession  of  the  chattels  were  in  the  plaintiff. 
Held,  no  departure  from  the  declaration,  there  being  nothing  in 
the  declaration  inconsistent  with  the  possession  alleged  in  the 
plea.2 

§  11.  In  replevin  for  two  oxen,  the  defendant  pleaded  that  they 
were  not  the  property  of  the  plaintiff,  and  issue  was  joined 
thereon.  The  plaintiff  had  leased  the  oxen  for  three  months ; 
during  which  they  were  attached  by  the  defendant,  a  deputy 
sheriff,  as  the  property  of  the  lessee.  Held,  the  action  could  not 
be  sustained,  inasmuch  as  the  plaintiff  had  not  the  right  of  pos- 
session ;  and,  although  the  term  had  expired  before  judgment,  a 
return  was  ordered,  because  the  question  in  whom  was  the  gen- 
eral property  had  not  been  tried. ^ 

§  12.  A  delivered  to  B  cattle  claimed  by  B  as  his  own,  upon 
receiving  a  receipt  from  him,  conditioned  to  return  them  if  B  did 
not  prove  his  title  satisfactorily  to  A.  Upon  replevin  brought  for 
non-delivery,  A  not  being  satisfied  with  B's  evidence ;  held,  evi- 
dence of  B's  title  was  admissible.* 

§  13.  By  a  bill  of  sale,  eight  family  pictures  were  conveyed  to 
A  by  his  grandmother,  subject  to  a  life-interest  in  her.  At  her 
death,  he  took  them  to  his  father's  house,  and  his  father  removed 
them  to  his  daughter's  house,  when  he  went  there  to  reside.  After- 
wards, the  father  brought  an  action  for  these  pictures  against  his 
daughter's  husband,  and  made  an  affidavit  that  "  he  is  owner  "  of 
the  pictures.  The  father  died  pending  this  action,  and  A  then 
began  a  similar  action,  in  which  this  affidavit  was  objected  to  his 
title,  but  it  was  not  shown  that  A  ever  read  it.  It  was  proved, 
however,  that  he  signed  an  undertaking  in  that  action  as  surety 
for  his  father,  which  recited  that  the  plaintiff  therein  "  has  made 
an  affidavit  that  the  defendants  wrongfully  detain  certain  personal 
property,  &c.,  and  the  plaintiff  claims  the  immediate  delivery," 
&c.      The   attorney    who    brought   that   action   proved   that    he 

1  Meritlen,  &c.  r.  Whedon,  31    Conn.  3  Collins  v.  Evans,  15  Pick.  63. 

118.  *  Dimond  v.  Downing,  2  Wis.  498. 

^  Judd  V.  Fox,  9  Cow.  259. 


CH.  IV.]  PROPERTY  AND   POSSESSION   NECESSARY,   ETC.  33 

advised  that  suit  to  be  brought  by  A  as  owner,  but  tliat  the 
father  insisted  on  bringing  it  as  bailee,  and  was  advised  that  he 
could  do  so.  Held,  the  finding  of  the  court  at  special  term, 
"  that  the  plaintiff  (A)  is  the  owner  of  the  eight  several  pictures 
mentioned,"  ought  not  to  be  disturbed.  The  expenditure  of 
money  on  the  pictures  by  the  defendant,  without  objection  by  the 
plaintiff,  the  former  not  claiming,  nor  the  latter  disclaiming,  their 
ownership,  would  not  bar  the  plaintiff's  recovery. ^ 

§  14.  Replevin  will  not  lie  for  an  article  manufiictured  to 
order,  until  it  is  completed  and  delivered.  Thus  A  accepted  an 
order  to  build  a  boat  for  B,  and  proceeded  to  build  one,  which 
he  repeatedly  declared  he  was  building  for  B,  on  the  order  ;  but, 
after  it  was  finished,  refused  to  deliver  it.  Held,  B  could  not 
maintain  replevin  for  the  boat,  his  remedy  being  by  an  action  on 
the  contract.^  So  A  contracted  to  build  a  house  for  B,  and  find 
the  materials,  for  which  he  was  to  receive  his  pay  as  the  work 
advanced.  After  the  house  was  enclosed,  he  worked  the  house- 
plank,  belonging  to  him,  into  columns  for  a  piazza,  and  removed 
them,  for  convenience,  to  an  adjoining  house,  where  they  were 
levied  upon  by  virtue  of  an  execution  against  A.  Held,  in 
replevin  by  B,  he  could  not  maintain  the  action,  the  materials 
being  personal  property,  and  not  passing  to  B  until  delivery,  or 
until  affixed  to  the  freehold.^ 

§  15.  A,  residing  abroad,  having  contracted  with  a  manufact- 
urer in  Massachusetts  for  the  building  of  certain  machines, 
which  were  to  be  delivered  to  A's  general  agent  here,  by  whom 
they  were  to  be  received  and  shipped,  and  paid  for  out  of  funds 
furnished  him  for  the  purpose  ;  a  part  of  the  machinery  was 
accordingly  manufactured  and  delivered  to  the  agent,  and  the 
whole  thereupon  paid  for  by  him.  Held,  the  agent,  inasmuch  as 
he  was  to  pay  the  price  ouly  for  A,  and  charge  it  to  him,  did  not 
thereby  acquire  any  such  property  in  the  articles  not  delivered, 
as  would  entitle  him  to  maintain  replevin  therefor  against  the 
manufacturer.* 

§  16.  A  quantity  of  hides  was  delivered  by  A  to  B,  for  which 
B's  note  was  taken,  at  their  agreed  value,  payable  in  eight 
months.     At  the  same  time,  a  written  agreement  was  made  by  B 

1  Hunt  I'.  Moultrie,  1  Bosw.  531.  »  Johnson    i'.   Hunt,   11    Wend.    137. 

^  Pettengillu.  Merrill,  47  Maine,  109.       See  U.  S.  v.  Kennan,  Pet.  C.  168. 

*  Dixon  V.  Hancock,  4  Cash.  96. 

3 


S4  REPLEVIN.  [book  I. 

with  A,  that,  in  case  of  the  non-payment  of  the  note  at  maturity, 
the  leather,  which  was  to  be  manufactured  from  the  hides,  should 
be  redelivered  to  A,  to  be  sold  by  him,  and  the  proceeds  of  the 
sale  to  be  applied  first  to  the  payment  of  the  note,  and  the  sur- 
plus, if  any,  to  be  given  to  B.  Held,  the  property  in  the  hides 
was  vested  in  B,  and  A  could  not  maintain  replevin  for  them 
against  an  attaching  creditor  of  B.^ 

§  17.  A  writing  in  these  words,  "  We  have  this  day  sold  to  W. 
L.  &  Co.  four  hundred  tons  of  pig  metal  at  our  landing,  or  that 
will  soon  be  delivered  there,"  is  not  such  evidence  of  delivery  to 
the  vendees,  as  will  support  an  action  of  replevin  by  tiiem  against 
one  who  had  obtained  possession,  before  the  arrival  of  their 
agent  at  the  landing  mentioned,  under  a  valid  contract  with  the 
vendor.^ 

§  17  a.  A's  intestate,  in  1862,  placed  a  horse  with  B  to  break 
and  use  for  its  feed,  and  in  1864,  in  order  to  keep  it  from  being 
impressed  by  the  confederate  government,  arranged  with  B  that 
B  should  claim  it  as  his  own,  and  took  B's  note  for  $400.  A, 
after  qualifying  as  administrator,  made  demand  for  the  horse,  but 
without  a  formal  tender  of  the  note.  Held,  A  could  maintain 
replevin  for  the  horse,  notwithstanding  the  fictitious  sale.^ 

§  17  6.  A  contracted  for  a  steam-engine  and  boiler,  to  be  of  a 
certain  power,  and,  when  they  were  delivered,  paid  a  portion  of 
the  price,  taking  a  receipt,  which  showed  that  the  money  was 
received  in  "  part  payment  for  the  steam-engine  and  boiler  sold  to 
A  by  me,"  and  also  provided  that,  if  they  should  not  prove  to 
be  of  the  power  specified,  B,  the  maker,  should  repay  the  money 
and  take  them  back,  and,  if  he  should  fail  to  do  so,  A  should 
have  a  right  to  sell  them.  On  trial  they  proved  not  to  be  of  the 
power  specified,  but  B  on  request  refused  to  repay  the  money 
and  take  them  away.  Several  months  afterward,  A  allowed  B 
to  take  away  and  use  the  boiler,  on  his  agreeing  to  pay  for  the 
use  of  it ;  and,  after  removing  it,  B  mortgaged  it.  Held,  the  title 
was  in  A,  and  he  could  maintain  replevin,  although  he  authorized 
B  to  sell  it  at  the  time  of  allowing  him  to  take  away  and  use  the 
boiler.4 

§  17  c.  A  sold  to  B  certain  specific  articles,  and  agreed  to  fur- 

1  Southwick  V.  Smith,  29  Maine,  228.         3  Lutz  v.  Yount,  Phill.  (N.  C.)  L.  367. 

2  Winslow  V.  Leonard,  2-1  Peun.  14.  *  Stevens  v.  Cunningliam,  3  Allen,  49L 


CH.  IV.]  PROPERTY   AND   POSSESSION   NECESSARY,  ETC.  35 

nish  Lira  certain  supplies  iu  a  lumbering  operation,  for  all  of 
which  B  was  to  pay  him  by  cutting  and  hauling  logs  at  a  stated 
price  per  M.  feet,  A  "  to  retain  entire  ownership  of  the"  specific 
articles  "until  he  received  entire  payment  for  the  same."  Upon 
a  settlement  of  the  lumbering  operations,  by  deducting  the  price 
of  the  articles  and  supplies  from  the  amount  due  B  for  cutting 
and  hauling,  a  balance  of  $634  was  found  due  him,  which  A 
paid.  Subsequently  it  was  found  that  $250  too  much  was  paid 
B.  An  action  of  replevin  having  been  brought  for  the  chattels 
by  B's  vendee  against  an  agent  of  A,  who  had  possession  of 
them;  held,  the  title  had  vested  in  B  notwithstanding  the  error  in 
the  account,  and  that  A  had  no  lien  upon  them  for  the  amount 
overpaid.^ 

§  17  c/.  A  gave  his  bond  to  convey  to  B  certain  timber  lands 
on  the  delivery  of  a  certain  amount  of  lumber,  part  at  the  time 
and  part  in  annual  instalments  ;  B  to  have  possession  and  use  of 
the  premises  "  without  impeachment  of  waste  or  claim  of  dam- 
ages against  him,"  so  long  as  he  performed  the  conditions  on  his 
part.  B  assigned  the  bond  to  C.  In  replevin  by  A  against  C, 
for  lumber  made  from  timber  cut  by  him  on  the  lands  after  Jan. 
1,  1858,  there  was  some  evidence  that  an  instalment  of  lumber 
due  on  that  day  had  not  been  paid.  Held,  a  default  of  C  in  de- 
livering the  lumber  did  not  give  A  any  property  in  the  lumber  in 
controversy  so  that  he  could  maintain  this  action.  Also,  that  B 
had  a  right  to  cut  timber  on  the  land,  and  that  this  right  passed 
to  his  assignee.^ 

§  17  e.  A  vendor  of  a  horse,  who  reserves  the  title  until  pay- 
ment of  the  purchase-money,  can,  before  payment,  recover  the 
horse  from  a  purchaser  from  his  vendee.*^ 

§  17/  The  defendant  agreed  that  the  plaintiff  should  cut 
staves  upon  his  land  at  a  certain  price  per  thousand.  The  de- 
fendant removed  the  staves  which  had  been  cut  and  counted,  but 
not  paid  for.  Held,  the  plaintiff  could  maintain  replevin  for  the 
staves,  and  without  a  tender  of  their  price* 

§  17  gr.  A  let  B  have  canvas  for  a  sail,  under  an  agreement 
that  it  should  be  and  remain  the  property  of  A  until  paid  for. 
B  made  the  sail,  furnishing  further  materials  for  it,  and  then  sold 

1  Hodgkins  v.  Dennett,  55  Maine,  559.  3  Holmark  v.  MoVm,  5  Cold.  482. 

2  Beckwith  i'.  riiillco,  15  Wis.  223.  *  Molin  c.  Stoner,  14  Iowa,  116. 


36  REPLEVIN.  [book   I. 

it  without  having  paid  for  it.  Held,  A  could  maintain  replevin 
against  the  vendee  to  recover  the  sail.^ 

§  18,  In  replevin  for  a  mare,  alleged  to  have  been  stolen  and 
sold  by  the  plaintiff's  son,  it  is  error  for  the  court  to  instruct  the 
jury,  tliat  they  might  infer  a  ratification  of  the  sale  by  the  plain- 
tiff from  his  delay  to  sue  for  more  than  a  reasonable  time,  to  be 
judged  of  by  them.^  (a) 

§  19.  Where  the  master  of  a  ship  has  received  goods  on  board, 
under  a  contract  to  deliver  them  at  A,  and,  being  with  the  ship- 
per in  a  port  short  of  A,  there  refuses  to  proceed  with  the  goods 
to  A ;  the  shipper  may  replevy  the  goods.  If  the  owner  of  the 
ship  again  replevy  them  from  the  shipper,  upon  these  facts  being 
disclosed  in  a  plea  in  abatement,  such  second  writ  shall  abate. 
Otherwise,  if  the  master  and  owners  claim  by  distinct  rights. 
In  such  second  writ  of  replevin,  it  is  improper  to  join  the  officer, 
who  served  the  first  writ,  as  a  defendant,  with  the  shipper.^ 

§  20.  In  New  York,  in  an  action  of  replevin  (or  to  recover  pos- 
session of  personal  property),  the  plaintiff  cannot  recover,  if  the 
property  belonged  to  a  person  deceased,  and  letters  of  adminis- 
tration have  been  issued,  and  the  plaintiff  has  taken  possession 
wrongfully.* 

§  21.  Questions  of  title  have  arisen,  as  depending  upon  the 
possession  of  goods,  obtained  by  the  service  of  a  writ  of  replevin 
itself,  with  the  accompanying  bond.  Thus  A,  by  a  writ  of  re- 
plevin against  B,  obtained  possession  of  B's  property,  and  sold  it 
to  C ;  A's  suit  was  abated  by  his  death,  and  no  judgment  was 
rendered ;  and  B  afterwards  demanded  the  property  of  C,  and, 
on  C's  refusal  to  give  it  up,  replevied  it.  Held,  C  acquired  no 
title,  and  B  might  maintain  replevin  against  him.^  In  this  case, 
it  was  claimed  that  a  plaintiff  in  replevin  has  the  right  to  sell  the 
property  replevied.  Mr.  Justice  Dewey  remarks  upon  this  prop- 
osition :  "  If   it  were  limited  to  replevin  in  cases  of   wrongful 

1  Eaton  V.  Munroe,  52  Maine,  63.  *  Rockwell  v.  Saunders,  19  Barb.  473. 

2  Watkins  v.  White,  3  Scam.  549.  ^  Lock  wood  v.  Perry,  9  Met.  440. 

3  Portland,  &c.  v.  Stubbs,  6  Mass.  422. 

(a)  A  petition,  in  a  suit  to  recover  a  paid  for  the  horse ;  and  that  the  defend- 

horse,  discloses  a  good  cause  of  action,  ant  knew  that  the  plaintiff  did  not  suffer 

when  it  states,  that  the  defendant   pur-  said  son  to  trade  in  his  property,  and  that 

chased  a  horse  belonging  to  the  plaintiff  the  son  was  a  minor  and  under  parental 

from  the  plaintiff's  minor  son  ;  that  the  control.     Ice  v.  Lockridge,  21  Tex.  461. 
plaintiff  never  received  the  consideration 


CH.  IV.]  PROPERTY    AND   POSSESSION   NECESSARY,   ETC.  37 

distress  for  rent,  or  of  cattle  damage  feasant,  it  miglit  be  more 
readily  assented  to,  as  in  sucli  cases  the  property  is  held  by  the 
defendant  in  replevin  for  a  particular  purpose,  and  he  does  not 
claim  to  be  the  owner  of  it.  And  where  the  plaintiff,  wlio  in  such 
case  is  the  actual  owner,  has  given  the  requisite  security,  by  a 
bond,  to  pay  such  rent,  or  such  damages,  if  the  property  is  not 
returned,  it  may  be  all  that  is  requisite  to  do  perfect  justice." 
The  learned  judge  proceeds  to  comment  upon  the  case  of  Gor- 
don V.  Jenney,  16  Mass.  409,  in  which  the  language  of  tiio  court 
would  seem  to  extend  the  same  principle  alike  to  all  cases  of 
replevin.  "  The  case  before  the  court  was  that  of  a  plaintiff  in 
replevin,  who  was  the  real  owner.  .  .  .  That  had  been  already 
settled.  ...  In  ordinary  cases  the  purchaser  buys  subject  to 
the  question  of  the  vendor's  title ;  and  we  think  none  the  less 
80  because  the  vendor  has  acquired  his  possession  under  a  writ 
of  replevin  issued  upon  his  own  representation,  and  which  may 
be  wholly  unfounded  in  truth.  .  .  .  The  plaintiff  in  replevin 
has,  by  virtue  of  his  writ,  acquired  the  right  of  possession  pend- 
ing the  action,  and  the  real  owner  cannot  lawfully  disturb  that 
right  during  the  pendency  of  the  action,  nor  institute  an  action 
against  a  third  person  who  may  become  possessed  of  the  goods. 
This  is  precisely  the  extent  of  the  right."  ^ 

§  22.  It  is  held  in  Texas,  that,  in  an  action  for  damages  for 
taking  and  carrying  away  property,  the  defendant  may  prove  a 
title,  though  the  property,  when  taken,  was  in  possession  of  the 
plaintiff  by  replevin.  But  where  A  brought  a  suit  against  B  for 
the  recovery  of  slaves,  and  procured  a  writ  of  sequestration  to 
be  issued  and  the  slaves  seized;  and  B  replevied  the  slaves;  and 
A  then  forcibly  took  them  out  of  the  possession  of  B  ;  whereupon 
B  brought  an  action  of  trespass  against  A  :  held,  this  gave  B  the 
legal  custody  and  possession  of  the  slaves,  for  the  purposes  of 
the  first  suit,  and  the  defendant  had  no  right  to  disturb  that  pos- 
session ;  that  it  was  not  competent  for  A  to  prove,  that  he  acted 
under  the  well-founded  belief  that  B  was  about  to  place  the  prop- 
erty out  of  the  reach  of  legal  })rocess,  and  to  put  it  out  of  his 
power  to  comply  with  the  condition  of  his  bond  ;  nor  that  B, 
before  the  first  suit,  had  wrongfully  taken  the  slaves  out  of  A's 
possession,  and  attempted  to  remove  them  out  of  the  State.- 
1  9  Met.  444.  ^  Fowler  v.  Stonum,  G  Tex.  GO. 


38  REPLEVIN.  [book   I. 

§  22  a.  An  owner  of  goods  transported  by  an  express  com- 
pany may,  after  tender  of  legal  charges  for  transportation,  &c., 
and  after  demand  and  refusal,  maintain  replevin  therefor  against 
the  agent  of  the  company  having  the  care  of  the  goods. ^ 

§  22  b.  When  the  defendant,  in  an  action  to  recover  possession 
of  certain  machines,  has  in  his  pleadings  admitted  the  plaintiff's 
ownership  without  qualification,  and  neither  there  nor  on  the 
trial  claimed  to  hold  by  virtue  of  any  one's  authority,  but,  on  the 
contrary,  denied  that  the  goods  were  in  his  possession ;  it  is  too 
late  to  assert,  on  appeal,  that  the  property  was  partnership  prop- 
erty, and  that  he  held  it  as  bailee  for  the  plaintiff's  partner. ^ 

§  22  c.  A  tanner,  who  contracts  to  tan  hides  furnished  him  by  a 
firm,  and  to  return  the  leather  in  a  reasonable  time,  at  a  price 
agreed  on  for  tanning  and  transportation,  payable  after  delivery, 
has  no  property  in  the  leather,  after  it  is  finished  and  ready  for 
delivery,  such  as  will  justify  its  detention  by  him.  Hence,  where 
finished  leather  was  carted  from  the  tannery  by  a  different  road 
to  a  difierent  place  from  the  usual  and  accustomed  place  of 
shipment  to  the  consignors,  and  there  stored  in  a  barn,  never 
before  used  as  a  place  of  storage ;  held,  replevin  would  lie 
therefor  by  the  surviving  partner  as  for  an  unlawful  taking  or 
detention.^ 

§  23.  The  alleged  title  or  possession  of  the  defendant  is  equally 
essential  to  the  maintaining  of  an  action  of  replevin  with  that  of 
the  plaintiff".  In  order  to  maintain  replevin  in  the  detinet,  the 
plaintiff  must  show  that  the  defendant  had  the  possession,  either 
actual  or  constructive,  by  himself  or  his  agent,  at  the  time  of  the 
institution  of  the  suit.^  (a)  Mere  acts  of  ownership  are  insuffi- 
cient.^ In  New  York,  before  the  Revised  Statutes,  the  action  of 
replevin  was  purely  possessory,  and  could  not  be  maintained 
against  a  party  who  had  entirely  divested  himself  of  the  goods 
claimed,  except  where  a  distrainor  for  rent  proceeded  fraudu- 
lently or  in  violation  of  the  statute  regulating  distresses.  And 
the  remedy  given  by  the  Code,  for  the  "  claim  and  delivery  of 
personal  property,"  cannot  be  maintained,  where  the  defendant 

1  Eveleth  v.  Blossom,  54  Maine,  447.  *  Beebe  v.  De  Baun,  3  Eng.  510 ;  King 

2  Tell  V.  Beyer,  38  N.  Y.  161.  v.  Orser,  4  Duer,  481. 

3  Lee  V.  Gould,  47  Penn.  398.  5  Wallace  v.  Brown,  17  Ark.  449. 

(a)  Proof  of  demand  is  not  necessary  conversion,  will  dispense  with  proof  of 
in  all  cases ;  and  conversion  on  the  part  demand.  Beebe  v.  De  Baun,  3  Eng.  510. 
of  the   defendant,  or  acts  amounting  to 


CH.  IV.]  PROPERTY   AND    POSSESSION   NECESSARY,   ETC.  39 

has   not,  in  fact  or  in  law,  the  possession  or  control  of  the  prop- 
erty claimed.^ 

§  24.  But  it  is  held,  that  replevin  may  be  maintained  against 
one  who  has  wrongfully  taken  the  property,  and  for  a  time 
detained  it,  but  before  commencement  of  suit  sold  and  delivered 
it  to  another.^  And  where  the  plaintiflF  fails  to  prosecute  his 
suit  with  effect,  the  law  presumes  title  in  the  defendant,  and  he 
has  only  to  prove  the  amount  of  his  damages  in  order  to  recover 
restitution.'^ 

1  Roberts   r.   Randall,    3    Sandf.    707  ;  -  Sayward  r.  Warren,  27  Maine.  453. 

Brockway  v.  Burnap,  12  Barb.  347.  ^  Rickner  v.  Dixon,  2  Greene,  6"Jl. 


40 


REPLEVIN. 


[book  I. 


CHAPTER  V. 


REPLEVIN    FOR   PROPERTY   TAKEN   BY   LEGAL   PROCESS. 


1.  General  rule  as  to  property  in  custody 
of  the  law. 

2.  Goods  in  possession  of  the  plaintiff. 

3.  Owner  may  replevy,  where  the  property 
is  taken  on  process  against  a  third  person. 

4.  What  may  be  taken  by  virtue  of  the 
■writ  of  replevin  itself. 

7.  Liability  of  an  attaching  or  execution 
creditor. 

8.  Title  or  possession  necessary  to  main- 
tain the  action. 


17.  Defence  of  an  officer;  plea,  evidence, 
judgment,  &c. 

29.  Replevin  in  cases  of  successive  pro- 
cesses. 

32.  Replevin  in  favor  of  an  officer  holding 
by  legal  process. 

37.  What  possession  of  an  officer  will  sus- 
tain an  action  against  him. 

38.  Successive  suits  of  replevin;  justifica- 
tion of  officer  under  the  replevin  writ. 

41.  Miscellaneous. 


§  1.  It  is  sometimes  held,  that  goods  taken  under  an  execution, 
being  iri  custody  of  the  Imu,  cannot  be  replevied  by  the  defendant 
or  a  stranger ;  (a)  though,  after  they  are  sold,  they  may  be  re- 
plevied by  the  true  owner.^  Replevin  of  goods  taken  on  execu- 
tion has  been  regarded  as  a  contempt.^  And  late  cases  in  this 
country  recognize  the  rule,  that,  at  common  law,  replevin  cannot 
be  maintained  against  an  officer,  who  has  the  custody  and  posses- 
sion of  property  under  an  attachment  or  a  valid  execution.-^  So 
it  is  held,  that  replevin  will  not  lie  by  the  owner  of  goods 
against  an  officer  attaching  them  as  the  property  of  a  third  per- 
son, where  the  officer  has  never  had  actual  possession,  and  no  right 
to  possession  other  than  is  founded  upon  the  receipt  for  the  goods 
given  by  the  owner,  in  whose  possession  the  goods  are,  in  which 


1  Gilb.  121;  Lev.  Ent.  152;  Lutw. 
1191.  Cromwell  v.  Owings,  7  Har.  &  J. 
55 ;  Reeside  v.  Fischer,  2  Har.  &  G.  320. 

2  Gilb.  Replev.  161 ;  Winnard  v.  Fos- 
ter, 2  Lutw.  1191. 

(a)  The  exemption  of  an  officer,  under 
§  5  of  the  Missouri  Act  of  March  3,  1855, 
from  liability  on  account  of  levy  of  an 
execution,  where  a  bond  of  indemnity 
has  been  given,  as  required  by  the  act, 
extends  to  an  action  of  replevin  brought 
against  liim.  St.  Louis,  &c.  v.  Castello, 
30  Mis.  124. 


3  Spring  V.  Bourland,  6  Eng.  658  ;  Mc- 
Leod  V.  Gates,  8  Ired.  387  ;  Goodrich  v. 
Fritz,  4  Pike,  525;  Ilsley  v.  Stubbs,  5 
Mass.  280 ;  Smith  v.  Huntington,  3  N.  H. 
76. 

The  owner  of  spirituous  liquors,  seized 
on  a  warrant  lawfully  issued  under  (Mass.) 
St.  1855,  c.  215,  §  25,  and  legally  served, 
cannot  maintain  replevin  against  the  offi- 
cer for  the  liquors  and  tlie  vessels  con- 
taining them.  Allen  v.  Staples,  6  Gray, 
491. 


CH.  v.]   REPLEVIN  FOR  PROPERTY  TAKEN  BY  LEGAL  PROCESS.    41 

there  is  no  acknowledgment  tliat  tlio  property  is  not  in  himself.^ 
So  the  defendant  may  avail  iiimself"  of  a  delivery  to  him,  pursuant 
to  a  writ  of  replevin  issued  out  of  a  court  of  competent  jurisdic- 
tion in  another  State,  the  litigants  and  the  thing  delivered  being 
subject  to  the  law  of  the  place  of  delivery .^  And  this,  on  a  plea 
of  property  and  without  special  plea.  Though,  where  a  n)otion  in 
arrest  of  judgment  is  made  on  the  ground  of  process,  the  defend- 
ant, having  neglected  to  demur  to  the  declaration,  cannot  recover 
costs."^  So  it  has  been  held  that  a  defendant  in  execution,  whose 
property  is  levied  on,  cannot  prosecute  a  writ  of  replevin, 
although  the  property  may  be  exempted  by  law.**  (a)  So  it  is 
held,  that  replevin  does  not  lie  against  an  oiEcer  who  has  received 
the  amount  of  an  execution  after  a  levy.^ 

§  2.  The  qualified  rule  is  sometimes  adopted,  that  an  owner 
in  possession  of  goods,  which  arc  taken  on  execution  against  a 
stranger,  may  replevy  them.*^  But  not  where  they  are  taken  from 
the  possession  of  the  debtor."  Replevin  does  not  lie  lor  ])roperty 
attached  on  a  writ  served  upon  the  plaintiff,  althougii  he  is  mis- 
described  therein,  and  has  pleaded  in  abatement  thereof;  and 
cannot  be  supported  by  evidence  that  he  did  not  make  the  con- 
tract therein  declared  on.^  (&) 

§  o.  But  the  distinction  is  made,  and  now  generally  prevails, — 
sometimes    depending,   however,    upon    express    statute,  —  that 


1  Latlirop  v.  Cook,  2  Slicp.  -114. 
^  Lowry  i'.  Hall,  2  AVatts  &  Serp.  129. 
8  Ilatliaway  v.  St.  John,  20  Conn.  343. 
*  Keynokls   v.  Sallee,  2  B.  Mon.  18; 
Saffell  V.  Wash,  4  ib.  92. 

(a)  Whore  exempt  property  is  attached, 
the  owner  does  not  forfeit  his  rij,dit  to  it, 
nor  estop  himself  from  recovering  by 
replevin,  by  failing  to  move  for  a  dissolu- 
tion of  attachment  or  a  release  of  the 
property.  Wilson  v.  Stripe,  4  Greene, 
551. 

Where  pro])erty  exempt  from  attach- 
ment was  levied  upon,  rcjilevin  was  held 
to  lie  to  recover  it.  Mosely  v.  Anderson, 
40  Miss.  49. 

(/))  In  Vermont,  replevin  by  a  debtor 
of  his  goods,  when  attaclieil  by  a  creditor, 
is  in  no  sense  an  adversary  suit,  and  the 
writ  is  not  to  bo  entered  in  court  upon 
the  docket  like  ordinary  cases.  It  is  only 
an  apjjondage  to  the  original  action,  and 
all  proceedings  thereon  must  be  had  as  a 
part  of  tiie  original  action.  Green  v. 
Holden,  35  Vt.  315. 


5  Gardner  v.  Campbell,  15  Johns.  401. 

6  Judd  V.  Fox,  9  Conn.  259. 

■?  Kellogg  V.  Churchill,  2  N.  II.  412; 
Molcher  v.  Lamprey,  20  ib.  403. 

**  I'erry  v.  Richardson,  9  Gray,  216. 

In  Ohio,  where  a  mortgagee  brings 
replevin  against  an  officer  who  lias  at- 
tached the  property  as  the  mortgagor's ; 
tiie  creditor  may  become  party  to  tlie 
suit,  and  bj'  counter-claim  obtain  ecjuita- 
ble  relief.  If  the  officer  has  set  up  the 
seizure  as  a  defence  in  the  court  below, 
the  cro'litor  may  thus  become  jiarty  after 
an  appeal.  After  a  verdict  upon  the  issues 
between  the  original  parties,  and  a  judg- 
ment for  damages  thereujion  ;  the  court 
shonlil  retain  the  clause  for  the  jiurpose  of 
deciding  the  counter-claiiii.  If  by  agree- 
ment tliis  question  is  submitted  to  a  jury; 
their  verdict  is  not  conclusive,  but  sub- 
ject to  review  b}-  the  c(un-t  at  its  discre- 
tion. Jlorgan  v.  Spangler,  20  Ohio  St. 
38. 


42 


REPLEVIN. 


[nOOK   I. 


although  goods,  taken  by  a  sheriff  on  execution  out  of  the  pos- 
session of"  the  defendant  in  the  execution,  being  in  the  custody  of 
the  law,  cannot  be  replevied  ;  if  an  officer,  having  an  execution 
against  A,  undertakes  to  execute  it  on  goods  of  B,  B  may  bring 
replevin  for  them,  more  especially  if  they  were  in  B's  posses- 
sion.^ (a) 

§  4.  Questions  have  often  arisen  in  reference  to  the  author- 
ity of  an  officer  by  virtue  of  the  writ  of  replevin  itself  An 
officer  is  not  protected  in  taking,  under  a  writ  of  replevin,  the 
property  of  a  third  person  in  no  way  a  party  to  the  replevin  suit, 
although  the  goods  seized  are  the  specific  chattels  which  the 
writ  of  replevin  directs  him  to  take.^  So  it  is  held,  that  a  writ  of 
replevin  does  not  justify  the  taking  of  property  from  one  not  in 


1  Thompson  v.  Bulton,  14  Johns.  84 ; 
5  Mass.  280,  Mass.  Sts.  1789,  c.  26; 
Hanna  v.  Steinberger,  6  Blackf.  520 ; 
Clark  V.  Skmner,  20  Johns.  465 ;  Chinn 
V.  Russell,  2  Blackf.  172 ;  Louisville,  &c. 
V.  Holborn,  ib.  267 ;  Philips  v.  Harriss,  3 

(a)  An  ofl5cer  attached  property  of  M. 
in  his  office,  and  packed  it  in  a  trunk  in  the 
office,  to  which  there  were  two  keys,  one 
of  which  was  taken  by  the  officer,  and 
the  other  left  with  M.  The  property  was 
not  removed  from  the  office.  Tlie  officer 
locked  the  office  and  carried  away  the 
key,  but  afterwards  delivered  it  to  an 
attorney  of  M.,  but  with  the  understand- 
ing that  he  did  not  relinquish  the  levy. 
Held,  M.  was  not  in  possession  of  the 
goods,  and  could  maintain  replevin. 
Maxon  r.  Perrott,  17  Mich.  332. 

In  Michigan,  replevin  under  the  stat- 
ute is  peculiarly  a  possessory  action  ;  and 
its  primary  object  is,  to  give  the  plaintiff 
actual  possession  of  property  wrongfully 
detained  from  him  by  the  defendant,  at 
the  time  tlie  action  is  brought.  Where 
an  officer,  in  levj'ing  an  execution,  made 
an  inventory  and  appraisal  of  the  goods, 
but  did  not  remove  them,  and  left  the 
house  and  property  as  he  found  tliem, 
but  still  claimed  them  by  virtue  of  the 
levy  ;  held,  as  the  property  was  in  the 
actual  possession  of  the  plaintiff,  he  could 
not  maintain  replevin.  Hickey  i'.  Hins- 
dale, 12  Mich.  U9. 

Where  a  sheriff  levies  upon  personal 
property,  owned  in  common  by  the  debtor 
and  A,  he  has  the  right  to  take  the  entire 
property  into  his  possession,  and  A  can- 
not maintain  replevin.  Lawrence  v.  Burn- 
ham,  4  Nev.  361. 

When  an  officer  so  seizes  chattels 
under  an  execution,  that  he  may  main- 
tain trespass  or  replevin  against  a  wrong- 


J.  J.  Mar.  121 ;  Caldwell  v.  Arnold,  8  Min. 
265.  A.  Coursey  v.  Wright,  1  H.  & 
McHen.  394;  Ilsley  v.  Stubbs,  5  Mass, 
280. 

2  Stimpson  v.  Reynolds,  14  Barb.  506. 


ful  taker ;  replevin  may  be  maintained 
against  the  officer  by  the  real  owner,  if  a 
stranger  to  the  writ.  Gallagher  v.  Bishop, 
15  Wis.  276. 

The  owner  of  goods,  not  being  named 
in  the  writ,  may  maintain  his  possession 
against  the  officer  by  force.  Com  v. 
Kennard,  8  Pick.  133. 

The  word  "  stranger,"  as  used  in 
§  2536  of  the  (Ala.)  Code,  which  author- 
izes a  replevy  by  the  defendant,  or,  in  his 
absence,  by  a  stranger,  of  goods  taken  in 
attachment,  means  a  person  not  a  party 
to  the  suit,  acting  for  the  defendant's 
benefit ;  and,  on  demand  made  by  the 
defendant,  the  stranger  must  deliver  the 
goods  to  him  or  to  the  sheriff.  Kirk  v, 
Morris,  40  Ala.  225. 

Where  trust  property  is  attached  in  a 
suit  against  the  trustee  as  an  individual, 
he  may  maintain  replevin,  being  substan- 
tially a  person  "  otlier  than  tlie  defend- 
ant," in  the  attachment  suit,  within  the 
meaning  of  the  (Conn.)  statute.  Jackson 
V.  Hubbard,  36  Conn.  10. 

Where  an  officer  levies  upon  partner- 
ship property  a  process  against  A,  one  of 
the  firm  ;  in  replevin  by  B,  the  other  part- 
ner, B  may  show  that  A  had  a  merely 
nominal  interest.  Gillham  i\  Kerone,  45 
Mis.  487. 

In  replevin  against  a  sheriflf",  it  is  not 
a  sufficient  defence,  that  a  third  person 
was  interested  in  the  profits  of  sales  of 
the  goods.  The  plaintiff  may  still  be  the 
owner,  and  entitled  to  possession.  Eapp 
V.  Vogel,  45  Mis.  524. 


CH.  v.]   REPLEVIN  FOR  PROPERTY  TAKEN  BY  LEGAL  PROCESS.    43 

possession  ;  and  the  owner,  if  in  possession,  may  maintain  an  action 
against  the  officer.  Tiie  court,  in  Oliio,  remark  :  "  While  tlie  riglits 
of  tiie  defendant  are  sedulously  guarded,  by  a  bond  required  from 
the  plaintiff,  no  guard  or  protection  is  afforded  in  the  proceeding  to 
the  rights  of  third  persons.  .  .  .  Unlike  (in)  proceedings  strictly 
in  reyn,  as  in  admiralty  and  in  chancery,  where  an  officer  is  directed 
to  take  possession  of  specific  property,  that  the  rights  of  parties 
thereto  may  be  ascertained,  the  property  is  not  retained  in  the  pos- 
session of  the  officer,  but  is  delivered  to  the  plaintiff,  and  no  provi- 
sion is  made  for  third  persons  to  intervene  and  assert  their  claims."  ^ 
But  replevin  does  not  lie  against  an  officer  who  replevies  from 
one  in  possession.^  In  a  very  late  case,  it  is  remarked  :  "  By  the 
English  law,  if  the  defendant  in  replevin  claim  property  in  the 
goods,  the  officer  cannot  lawfully  deliver  them  to  the  plaintiff 
until  the  question  of  property  has  been  determined  in  his  favor 
on  a  writ  de  proprietaie  j^^'O^'^inda,  sued  out  by  him.  But,  by 
our  law,  the  question  of  property  is  to  be  tried  in  the  replevin 
suit."  3  (a) 

§  5.  In  New  York,  although,  before  the  Code,  the  sheriff  could 
not  be  made  liable  as  a  trespasser  for  taking  the  goods  described 
in  a  writ  of  replevin  from  a  third  person,  claiming  to  be  the 
owner;  yet,  in  the  action  which  the  Code  has  substituted  for  that 
ot  replevin,  he  can  only  take  the  property  described  in  the  affi- 
davit of  the  plaintiff,  when  it  is  found  in  the  possession  of  the 
defendant  himself,  or  of  his  agent.^ 

§  6.  In  the  same  State  it  is  held,  that  the  17th  section  of  the 
Replevin  Act  (2  Rev.  Sts.  525)  was  enacted  for  the  benefit  of 
the  sheriff,  and  not  for  that  of  the  party.  The  indemnity  therein 
mentioned  is  for  his  security,  and  what  shall  be  the  extent  and 
form  of  it,  is  for  him  to  determine.  As  soon  as  the  inquisition  is 
found  by  the  jury,  under  that  section,  it  becomes  a  question  ex- 
clusively for  the  sheriff  to  decide  to  which  party  he  will  deliver 
the  property ;  or,  if  he  delivers  it  to  the  plaintiff,  what  indem- 
nity he  will  require.^ 

1  State,  &c.  V.  Jennings,  14  Ohio  St.  3  pgr  jMetcalf,  J.,  Willard  v.  Kimball, 
73.     Per  Gliolson,  J.,  77.                                 10  Allen,  212. 

2  Willard  r.  Kimball,  10  Allen,  211.  *  King  v.  Orser,  4  Duer,  431. 

»  Kussell  V.  Gray,  11  Barb.  £41. 

(r;)  "There  is  a  difference  between  a  the  words  are  general,  namely,  to  levy  of 

replevin  and  other  process  of  law,  with  the  goods  of  the  party,  and  tlierefore  'tis 

respect  to  the  otticers  ;   for,  in  replevin,  at  tiieir  peril  if  they  take  another  man's 

they  are  expressly  commanded  wiiat  to  goods."     Per  Lord  Holt,  llallett  v.  Byrt, 

take,  in  specie;  but,  in  writs  of  execution,  Carth.  381. 


44  "  REPLEVIN.  [book   I. 

§  7.  In  Massachusetts,  a  creditor,  at  whose  suit  an  attachment 
is  made  of  goods  not  the  property  of  his  debtor,  is  not  liable  in 
replevin,  either  alone,  or  jointly  with  the  attaching  officer.^  (a) 
But  it  is  held  in  Vermont,  that  the  owner  of  property,  attached 
in  a  suit  against  another,  may  maintain  replevin  therefor  against 
the  creditor  and  the  officer  jointly,  when  the  former  assisted  in 
taking  the  property,  and  took  it  into  his  own  possession  after 
the  attachment.^  So  if  an  attaching  creditor  claims  to  own  the 
goods,  and  attaches  them  in  order  to  enforce  his  title  ;  he  is 
estopped  to  deny  that  replevin  is  rightly  brought  against  him.^ 
So,  in  Indiana,  replevin  lies  against  an  attaching  creditor  who 
assumes  control,  and  directs  as  to  the  execution,  of  the  writ.* 
So,  in  New  York,  replevin  lies  against  a  party,  jointly  with  the 
officer,  who  orders  the  levy  of  an  execution  upon  the  goods.^ 
The  court  remark,  that  it  is  immaterial  that  the  defendant  never 
had  the  property  in  his  possession.  The  order  itself  was  a  suffi- 
cient taking.  A  distinction  is  made  between  this  case  and  that 
of  Brockway  v.  Burnap,  12  Barb.  347,  in  which  the  defendant, 
who  once  had  possession,  had  transferred  the  property  and  parted 
with  the  possession  before  suit  brought.  And  the  court  further 
remark :  "  I  do  not  think  the  Revised  Statutes,  or  the  Code  of 
Procedure,  have  made  any  change  in  the  law  as  to  the  nature  of 
the  possession  in  the  defendant  which  is  required  to  warrant  an 
action  for  the  delivery  of  personal  property."^  And,  in  Connect- 
icut, a  writ  of  replevin  for  goods  attached,  in  favor  of  a  claimant 
who  was  not  a  party  to  the  attachment,  must  be  brought  against 
the  attaching  creditor,  and  not  against  the  officer.  If  the  credi- 
tor resides  in  another  State,  the  replevin  may  be  served  upon  the 
goods,  which  will  give  jurisdiction  to  the  court ;  and  then  the 
creditor  may  be  made  a  party,  in  the  same  manner  as  though  his 
property  had  been  attached  in  this  State.'''     So  if  the  vendee  of 

1  Richardson  v.  Reed,  4  Gray,  441.  '=  Knapp  v.  Smith,  27  N.  Y.  (13  Smith) 

2  Esty  V.  Love,  32  Vt.  744.  277. 

3  Tripp  V.  Leland,  42  Verm.  487.  «  Per  Denio,  C.  J.,  27  N.  Y.  281. 

*  Firestone  v.  Mishler,  18  Ind.  439.  "?  Bowen  v.  Hutchins,  18  Conn.  550. 

Where  a  lawful   writ  commands  the  tachment  suit  to  be  made  a  codefendant. 

seizure  of  specific   property,  replevin   to  Vallc  v.  Cerre's,  36  Mis.  575. 
recover  sucli  property  cannot  be  main-  In  Oliio,  where  a  creditor  of  a  mort- 

taincd    against    tlie    officer.      Griffith   v.  gagor  seizes  tlie  property  by  legal  process. 

Smith,  22  Wis.  646 ;  Battis  v.  Hamlin,  ib.  and  the  mortgagee  replevies  it ;  the  cred- 

669.  itor    may   come    in   and    have   relief  by 

(a)  In    replevin   against  a   sheriff  to  counter-claim.    Morgan    v.  Spangler,  20 

recover    goods    attached    by   him,   it  is  Ohio  St.  58. 
proper  to   allow  the   plaintiff  in   the  at- 


CH.  v.]   REPLEVIN  FOR  PROPERTY  TAKEN  BY  LEGAL  PROCESS.    45 

goods  sold  on  condition  procures  them  to  be  sold,  on  execution 
against  him,  to  one  who  has  knowledge  of  the  condition  ;  the 
original  vendor  may  maintain  replevin  against  the  second  pur- 
chaser, without  a  previous  demand.^  So  replevin  in  the  cepit  lies 
against  a  judgment  creditor,  or  the  sheriff  acting  by  his  authority, 
in  levying,  by  virtue  of  an  execution,  upon  property  which  a 
vendor  has  a  right  to  reclaim,  because  the  conditions  of  the  sale 
have  not  been  complied  with.''^  (a) 

§  7  a.  A  sale  of  A's  property  upon  mesne  process  against  B  is 
void,  and  A  may  maintain  replevin  against  the  purchaser.^  (6) 

§  7  6.  In  case  of  replevin  of  goods  as  attached,  which  were 
not  attached,  but  held  by  the  party  as  owner ;  trover  lies  against 
the  replevying  officer.^ 

§  8.  Substantially  the  same  requisitions,  as  in  other  cases,  of 
title  in  the  plaintiff,  are  demanded  in  replevin  against  officers. 

§  9.  Where  property  is  left  with  a  person  who  has  advanced 
money  upon  it,  and  which  he  is  to  keep  in  his  own  right  until  he 
shall  be  reimbursed,  he  may  replevy  it  from  an  attaching  creditor. 
And  unless  it  is  made  to  appear  that  the  attaching  party  was 
really  a  creditor,  he  cannot  complain  that  it  was  a  design  to  pro- 
tect the  property  for  the  debtor.  The  rights  of  the  parties  must 
depend  upon  the  facts  existing  at  the  time  the  writ  issued.  The 
writ  does  not,  of  itself,  show  that  the  defendant  in  it  was  a  debtor 
of  the  plaintiff.  It  only  shows  that  the  officer  acted  in  behalf  of 
an  assumed  creditor.^ 

§  10.  Where  a  firm,  engaged  in  sawing  lumber,  contracted 
with  the  plaintiff  to  receive  all  pine  saw-logs  belonging  to  the 
plaintiff,  and  manufacture  them  into  lumber,  ship  it,  receive  pay- 
ment for  it,  and  pay  a  certain  percentage  to  the  plaintiff  per  thou- 
sand feet,  keeping  the  balance  for  their  services  ;  and  the  contract 
provided  that  the  logs  should  be  the  plaintiff's  at  all  times,  till  he 
received  his  percentage  as  agreed  ;  and  the  logs  were  attached  in 

1  Blanchard  i:  Cliild,  7  Gray,  155.  *  DriscoU  v.  Place,  44  Verm.  252. 

2  Acker  v.  Campbell,  23  Wend.  372.  »  Currier  v.  Ford,  26  111.  488. 

3  Coombs  V.  Gorden,  5'J  Maine,  IIL 

(a)  Wliere   a  constable   of  St.   Louis  as   bailee  ;    held,  the    possession  of  the 

coimty  had   levied  upon  a  slave  by  vir-  T)ailee  was  that  of  the  constable,  and  an 

tue   of  executions  from    a  justice  of  the  action  for  delivery  of  the  slave  could  not 

peace,  and,  upon  a  claim  of  projjcrty  by  be  maintained  against  the  bailee.     Ilam- 

A,  had  taken  a  bond  of  indemnity  from  bleton  v.  Lynch,  32  Mis.  259. 
the  plaiiititls  in  the  executions,  in  accord-         (b)  In  Georgia,  replevin  does   not  lie 

ance   with    the   statute,  and  had   placed  againt  one  who  purciiases  from  an  officer, 

the  slave  in  possession  of  the  defendant  Bryan  v.  Whitsett,  39  Geo.  715. 


46  REPLEVIN.  [book   I. 

the  hands  and  as  the  property  of  the  firm  :  held,  the  plaintiff 
might  maintain  replevin,  and  had  a  right,  as  against  the  officer 
attaching,  to  immediate  possession.^ 

§  10  a.  A  owned  corn,  purchased  for  him  by  B,  a  warehouse- 
man, who  put  it  in  a  mixed  mass  with  other  corn,  owned  by 
different  persons,  who  had  stored  it  with  B.  B  delivered  the 
whole  mixture  to  A,  from  whom  it  was  wrongfully  taken  on 
execution  by  C.     Held,  A  might  maintain  replevin  against  C.^ 

§  11.  By  a  custom  among  brewers  and  retailers  of  beer,  as  beer 
cannot  be  removed  in  warm  weather  without  injury,  the  brewer 
in  the  spring  delivers  to  the  retailer  such  quantity  of  beer  as  he 
expects  to  retail  in  the  ensuing  season.  The  barrels  belong  to 
the  brewer,  and  are  to  be  returned  to  him  when  emptied.  The 
retailer  pays  for  all  the  beer  that  he  sells  in  the  course  of  the 
season,  at  the  price  at  which  it  was  originally  furnished.  If  any 
of  the  beer  becomes  sour  or  stale,  or  is  lost  by  casualty,  the  loss 
falls  upon  the  brewer.  If  any  remains  unsold  at  the  end  of  the 
season,  the  retailer  has  a  right  to  return  it,  but  the  brewer  has 
no  right  to  take  it  without  his  consent.  Payment  is  never  made 
in  advance.  The  profits  of  retailing  belong  to  the  retailer,  and 
he  bears  all  losses  by  bad  debts.  The  brewer's  price  of  beer 
never  varies.  Held,  that  beer  so  delivered  was  not  liable  to 
attachment  as  the  property  of  the  retailer.  If  the  sale  of  the 
beer  is  stopped  by  the  acts  of  the  retailer,  his  right  to  retain 
ceases  ;  and  where  the  beer  was  attached  as  the  property  of  the 
retailer,  and  the  retailer  assigned  all  his  special  property  in  it  to 
the  brewer,  it  was  held  that  the  brewer  had  such  right  of  pos- 
session as  would  enable  him  to  bring  replevin  against  the  attach- 
ing officer.^ 

§  12.  Personal  property  being  attached  in  a  suit  by  A  against 
B,  C  served  upon  A  and  the  officer  a  notice  that  he  should  bring 
replevin,  and  the  next  day  a  writ  of  replevin  was  served  upon 
the  officer.  After  notice,  and  before  such  service,  the  former 
suit  was  withdrawn  and  the  property  surrendered  to  B.  B  then 
applies  for  a  mandamus  to  compel  the  attaching  officer  to  deliver 
the  property  to  the  officer  serving  the  replevin  writ,  alleging  that 
C  was  in  possession  at  the  time  of  attachment,  but  not  his  owner- 
ship, or  that  the  writ  of  replevin  claimed  such  ownership.     The 

1  Bassett  v.  Armstrong,  6  Mich.  397.  3  Meldrum  v.  Snow,  9  Pick.  441. 

2  Warner  v.  Cushman,  31  111.  283. 


CH.  v.]       REPLEVIN    FOR   PROPERTY   TAKEN    BY    LEGAL    PROCESS.       47 

officer  returned  upon  the  mandamus  the  witlidrawal  of  tlic  attach- 
ment suit,  and  the  delivery  to  B.  Upon  demurrer  by  C,  held,  the 
return  was  apparently  sufficient,  since  the  purpose  of  the  statute, 
providing  for  replevin  in  such  cases,  was,  to  give  the  claimant  of 
property  an  opportunity  to  try  his  title,  which  could  be  done  in  a 
suit  against  B  as  well  as  in  the  replevin  suit ;  but  further,  that 
the  return  was  sufficient  for  the  application,  which  was  demur- 
rable in  not  alleging  title.  Under  the  statute  of  Connecticut,  the 
plaintiff  in  replevin  must  claim  to  be  the  owner.^ 

§  13.  Replevin  lies  at  the  suit  of  the  owner  of  a  chattel  against 
an  officer,  who  has  taken  it  from  his  servant  or  agent  while  in  his 
employ,  by  virtue  of  an  execution  against  such  servant  or  agent; 
the  actual  possession,  in  such  case,  being  considered  as  remaining 
in  the  owner.^  (a) 

§  14.  In  Connecticut,  the  right  of  one  person  to  replevy  goods, 
attached  in  a  suit  against  another,  is  given  by  the  eighth  section 
of  the  statute  authorizing  writs  of  replevin,  as  revised  in  1821, 
and  exists  only  in  favor  of  the  owner  of  the  goods,  who  is  required 
to  make  out  a  title  thereto.  It  does  not  apply  to  one  having  a 
lien  on  goods,  attached  in  a  suit  against  the  general  owner.'^ 

§  15.  The  messenger  of  the  commissioners  of  a  bankrupt 
having  delivered  goods  of  the  bankrupt  to  a  stranger,  taking  his 
obligation  to  keep  them  safely  and  to  redeliver  them  on  demand ; 
the  bailee  cannot  maintain  replevin  against  one  who  had  taken 
them,  not  having  property,  either  general  or  special.^ 

§  16.  Where  a  parol  gift  of  slaves  was  made  by  a  father  to  his 
daughter,  who  retained  them  two  years  and  then  exchanged  them 
for  others  at  the  request  of  her  father,  still  claiming  them  as  her 
own  ;  and,  after  they  had  been  in  the  father's  possession  six  years, 
they  were  sold  under  execution  against  him :  held,  an  action  of 
replevin  did  not  lie  by  the  daughter  and  the  heirs  of  her  hus- 
band.'^ (6) 

1  Meriden,  &c.  v.  Whedon,   31  Conn.  3  Brown  r.  Chickopee,  &c.  12  Conn.  87. 

118,  Conn.  Rev.  Sts.  tit.  1,  §  253.  *  Waterman  v.  Robinson,  5  Mass.  303. 

-  Clark  i;.  Skinner,  20  Johns.  4G5.  5  Scott  c.  Hughes,  9  B.  Mon.  104. 

(rt)  When   goods  in  the   hands   of  a         (h)  In  New  York,   actual   possession, 

bailee  are  attached   as  his  i)roperty,  re-  accompanied  by  an  equitable  interest  in 

plevin    lies    against    tlie    officer   by    the  the  plaintifl'  at  tiie  time  of  seizure  by  the 

owner,  altiiough  the  goods  reinam  in  the  officer,  is  sufficient  to  maintain  an  action 

hands  of  the  bailee,  the  attachment  not  to   recover    possession    and     entitle    the 

being  dissolved.     Ralston  v.  Black,    15  phiintifl'   to    a    return   of   the    property 

Iowa,  47.  Frost  v.  Mott,  34  N.  Y.  253., 


48 


REPLEVIN. 


[book  I. 


§  17.  In  replevin  against  a  sheriff,  who  sets  up  a  right  under 
civil  process,  and  claims  to  have  a  return  of  the  goods,  the 
sheriff  must  show  a  good  title  in  omnibus,  and  a  foundation  for 
the  writ.^  But,  it  seems,  an  officer  sued  in  replevin  may  plead 
property  in  himself,  and  prove  it  by  showing  his  special  property 
under  an  attachment.^ 

§  18.  The  distinction  is  taken,  that,  if  an  execution  is  levied  on 
goods  not  of  the  defendant  in  execution,  and  the  owner  replevies  ; 
the  officer,  to  defend  t  e  taking,  must  show  a  judgment  and 
execution,  and  that  the  goods  are  the  property  of  the  defendant 
in  execution.  But  if  the  defendant  in  execution  be  the  plaintiff 
in  replevin,  it  is  sufficient  to  show  judgment  and  execution.^ 

§  19.  Where  the  defendant  in  replevin  was  emjDloyed  by  a  cred- 
itor to  attach  the  goods,  but  the  attachment  proved  ineffectual 
because  the  general  property  was  in  a  third  person  ;  it  was  held, 


1  Brown  v.  Bissett.  1  N.  J.  46. 

2  Quincy  v.  Hall,  1  Pick.  357. 

St.  24  Geo.  II.  c.  44,  §  6,  which  enacts 
that  no  action  shall  he  brought  against  a 
constable,  acting  in  obedience  to  the 
warrant  of  a  justice  of  the  peace,  till 
demand  of  a  copy  of  the  warrant,  and 
refusal  thereof;  and  2  &  3  Vict.  c.  93, 
§  8,  and  1  &  2  Wm.  IV.  c.  41,  §  19,  which 
require  a  calendar  month's  notice  of  ac- 
tion to  be  given  to  any  constable  for 
any  thing  done  in  the  execution  of  his 
office  ;  do  not  apply  to  actions  of  replevin. 
Gay  V.  Matthews,  4  B.  &  S.  425. 

In  Arkansas,  where  the  plaintiff's 
horse,  in  possession  of  A,  has  been  sold 
under  an  execution  against  A ;  he  can 
maintain  replevin  therefor  against  the 
purchaser,  or  the  proprietor  of  a  stable 
in  whose  cliarge  he  was  placed,  without 
demand.     Hicks  v.  Britt,  21  Ark.  422. 

In  an  action  to  recover  personal  prop- 
erty, it  is  error  to  strike  out  a  part  of  the 
answer,  which  alleges  that  the  plaintiti"s 
only  title  was  under  a  sale  made  by  a  con- 
stable in  pursuance  of  certain  fraudulent 
schemes,  and  that  the  property  was  not 
sold  by  the  constable,  but  that  he  made  a 
false  and  fraudulent  certiticate  that  he  had 
sold  it.    McDonald  r.  Prescott,  2  Nev.  109. 

A  sheriff  sold  a  steamboat,  with  the 
understanding  that,  if  the  sale  was  not 
valid,  the  purcliaser  should  be  bailee  for 
the  slieriff.  Held,  the  title  under  such 
sale  was  sufficient  to  maintain  replevin, 
although,  after  the  seizure  by  the  defend- 
ant in  replevin,  the  supreme  court  had 
adjudged  the  sheriff's  sale  void.  Scott  v. 
EUiott,  Phill.  (N.  C.)  L.  104. 


3  Bruer  v.  Ogden,  6  Halst.  370. 


"When  a  constable  makes  a  levy  upon 
property  which  is  afterwards  replevied 
by  one  claiming  by  purchase  from  the 
judgment  debtor  prior  to  the  levy,  the 
plaintiff  in  replevin,  on  executing  an 
undertaking  as  required  by  law,  acquires 
a  right  to  possession,  and  all  the  interest 
of  such  constable  by  virtue  of  his  levy ; 
and  this,  notwithstanding  it  should  be 
found  that  the  purchase  was  fraudulent 
and  void  as  against  creditors.  When  the 
officer  sells  the  property,  sucli  plaintiff 
may  maintain  replevin  against  tlie  pur- 
chaser. Crittenden  v.  Lingle,  14  Ohio 
(N.  S.),  182. 

Where  the  mortgagee  of  personal  prop- 
erty failed  to  take  possession  for  two 
days  after  the  debt  became  due,  and 
then  a  constable  levied  upon  it,  on  an 
execution  against  the  mortgagor ;  lield, 
the  mortgagee  could  not  maintain  replevin 
therefor  against  the  officer.  Reese  v. 
Mitchell,  41  111.  865. 

A  mortgagee  of  chattels  may  maintain 
replevin  for  them  after  their  attachment 
by  trustee  process  against  the  mortgagor, 
without  making  the  demand  required  by 
(Mass.)  Rev.  Sts.  c.  90,  §§  78,  79.  Put- 
nam V.  Gushing,  10  Gray,  334. 

A  foreign  attachment,  served  upon  the 
transporter  of  goods,  who  has  the  posses- 
sion of  them,  does  not  constitute  such 
custody  of  the  law  as  to  prevent  a  stop- 
page in  transitu  by  replevin.  Hayes  v. 
Monille,  2  Harr.  48. 


CIT.  v.]   REPLEVIN  FOR  PROPERTY  TAKEN  BY   LEGAL  PROCESS.    49 

tliat  the  defendant  niiglit  still  justify  under  a  lien  of  the  attach- 
ing creditor,  independent  of  the  attachment,  and  as  the  servant 
of  the  creditor.^ 

§  20.  An  officer,  who  defends  in  replevin,  should  set  up  that  he 
took  the  property  by  execution.^ 

§  21.  In  the  cognizance  of  a  constable  in  replevin,  the  statement 
of  the  amount  of  the  ji.  fa.  from  the  justice  in  blank  will  not  bo 
fatal  after  issue  and  verdict.** 

§  22.  An  avowry  of  seizure  upon  execution  must  allege  that 
the  property  belonged  to  the  debtor  and  was  liable  to  the  execu- 
tion."^ 

§  23.  More  especially,  a  plea  of  justification  to  an  action  of 
replevin  against  an  officer,  for  seizing  the  property  on  execution, 
if  the  property  was  not  in  the  possession  of  the  defendant  in 
execution  when  taken,  must  aver  that  it  was  his  property.'' 

§  2-4.  The  avowries  admit  the  taking,  and  traverse  property  in 
the  plaintiff.  What  precedes  this  traverse  —  to  wit,  the  allegation 
of  the  delivery  of  the  executions  to  the  sheriff,  the  time  when 
they  were  delivered,  and  when  seizure  was  made,  and  that  the 
goods  were  then  the  property  of  the  judgment  debtor —  is  matter 
of  inducement  merely,  and  not  traversable.*" 

§  25.  If,  in  trespass  for  taking  chattels,  the  defendant  justifies 
as  an  officer  under  a  writ  of  replevin  ;  it  is  sufficient  to  allege  in 
such  plea,  that  the  plaintiff  in  replevin  gave  bond,  <fec.,  before  the 
chattels  were  delivered  to  him,  thougli  it  is  not  alleged  to  have 
been  done  before  the  defendant  took  them.^ 

§  26.  In  case  of  attachment,  the  officer  can  have  a  return 
only  by  showing  property  in  himself  or  the  debtor.  It  is  not 
enough  to  rely  upon  a  technical  objection  to  a  judgment  for  the 
plaintiff.^ 

§  27.  To  justify  under  an  attachment  by  his  deputy,  the  sheriff 
must  allege  and  prove  his  official  authority  to  appoint  a  deputy, 
the  court  or  magistrate  that  issued  the  writ,  and  annexation  of 
the  statutory  affidavit.'^ 

§  27  a.  It  is  held  that  a  justification  under  a  writ  must  allege 

»  Townsend  v.  Newell,  14  Pick.  332.  «  Boswell  v.  Greoii,  1  Dutch.  ?.',tO. 

^  Wheeler  r.  McCorristen,  '1\  111.  42.  ^  Cushnian  i-.  riiurchill,  7  Mass.  <t7. 

*  Ilerley  v.  Iluiiie,  5  Monr.  1)S1.  •*  Hall  v.  Gilinore,  40  Maine,  o78.    See 

*  Dillon  V.  \Vrit,'lit,  4  ,1.  .1.  Mar.  234.  Quincv  c  Hall,  1  Pick.  357. 

6  Smith  i;.  Winston,  10  Mis.  2yy.  »  Ai'Carty  v.  Gage,  3  Mis.  404. 


50  REPLEVIN.  [book   I. 

that  the  writ  was  in  full  force,  the  money  unpaid,  and  that  the 
property  was  taken  in  pursuance  of  its  authority. ^ 

§  27  h.  When  property  is  replevied  from  an  officer  having  no 
other  interest  in  it  than  that  of  the  execution  creditor,  the 
officer's  recovery  is  limited  to  the  amount  of  the  execution,  with 
interest  and  costs  thereon.  Payments  on  the  judgment,  though 
made  after  commencement  of  the  replevin  suit,  should  be  ad- 
mitted in  evidence  for  the  plaintiff,  in  mitigation  of  damages.^ 

§  27  c.  Where  the  defendant,  a  sheriff,  who  had  levied  on  the 
plaintiff's  goods  on  an  execution  against  A,  had  delivered  them 
to  the  plaintiff  under  replevin  ;  the  defendant,  on  a  verdict  in 
his  favor,  is  entitled  to  recover  the  full  value  thereof,  —  not 
merely  the  amount  of  the  execution. ^ 

§  27  d.  In  replevin  against  an  officer,  his  amount  of  recovery, 
if  a  return  cannot  be  had,  must  be  limited  to  the  value  of  his 
special  property  ;  which,  before  judgment  or  execution,  is  the 
sum  specified  in  the  writ,  with  interest  and  costs.'* 

§  27  e.  Where  the  defendant's  answer  in  replevin  alleges  that 
he  held  the  goods  as  an  officer  under  an  execution,  &c.,  but  does 
not  show  the  amount  of  the  execution;  the  burden  is  upon  liim 
to  prove  the  amount,  before  he  can  have  judgment  for  the  value 
of  the  property,  and  damages  for  its  detention.^ 

§  27/.  A  plea  to  an  action  of  replevin,  justifying  the  taking 
by  virtue  of  a  writ,  must  aver  that  the  writ  was  in  full  force,  the 
money  unpaid,  and  the  property  taken  in  pursuance  of  its  au- 
thority.*^ 

§  27  g.  Where  A  replevies  property  of  B,  who  justifies  his 
possession  by  pleading  that  he  holds  it  as  sheriff,  under  an  at- 
tachment and  judgment;  the  record  of  such  judgment  is  not 
evidence  for  B,  the  record  failing  to  show  that  the  defendant  in 
the  attachment  was  properly  served  with  process.'^ 

§  27  h.  Where  a  party  brings  an  action  in  one  court,  and  re- 
plevies property  from  an  officer  of  another  whose  jurisdiction  over 
it  first  attached;  the  former  tribunal  has  jurisdiction  to  inquire 
into  the  validity  of  its  own  proceedings,  and  to  take  steps,  on  dis- 
missal of  the  action,  to  enforce  a  redelivery  to  the  officer.^  So 
where  the  affidavit  in  replevin,  upon  which  the  sheriff,  in  obedience 

1  Davton  v.  Fry,  29  111.  525.  5  Booth  v.  Ableman,  20  Wis.  21. 

2  Booth  V.  Ableman,  20  Wis.  21.  6  Dayton  v.  Fry,  29  111.  525. 

3  Buck  V.  Remsen,  34  N.  Y.  383.  ^  liepine  v.  McPherson,  2  Kans.  340. 
*  Battis  V.  Hamlin,  22  Wis.  669.  8  Booth  v.  Ableman,  16  Wis.  460. 


CH.  v.]   REPLEVIN  FOR  PROPERTY  TAKEN  BY  LEGAL  PROCESS.    51 

to  a  direction  of  the  plaintiff's  counsel  indorsed  thereon,  took  tlie 
property  from  tiie  defen(hints  and  deHvered  it  to  the  phiinlifF, 
showed  on  its  face  that  tiie  defendants  liehl  the  property  as 
marshal  and  deputy-marshal  of  the  United  States,  by  virtue  of 
an  execution  issued  ui)on  a  judgment  rendered  against  the  plain- 
tiff in  the  United  States  court  for  the  district  of  Wisconsin; 
held,  the  State  court  had  the  power,  and  it  was  its  duty,  not  only 
to  order  a  return,  but  to  render  a  judgment  for  the  value  in  case 
a  return  could  not  be  had.^ 

§  27  I.  The  plaintiff  in  replevin  alleged  his  own  title  and  right 
of  possession,  and  a  wrongful  taking,  <fec.,  by  the  defendant.  The 
defendant  answered,  denying  the  allegation  as  to  title  and  right 
of  possession,  and  alleging  that,  being  United  States  marshal, 
and  having  in  his  hands  a  writ  of  attachment  from  the  United 
States  district  court  against  A,  he  levied  it  upon  this  property, 
as  the  property  of  A  ;  and  demanded  judgment  for  a  return  or  the 
value  of  the  property.  There  was  no  reply.  Held,  a  judgment 
for  return  was  proper.- 

§  27  y.  When  a  sheriff  is  found  entitled  to  a  return,  the  meas- 
ure of  damages,  if  the  property  is  not  returned,  is  the  amount  of 
.the  execution  with  interest  and  costs.  Section  249  of  (Min.)  Gen. 
Sts.  c.  6Q,  has  not  changed  the  measure  of  damages.^ 

§  28.  Where  all  the  proceedings  upon  a  writ  or  plaint  in  re- 
plevin, subsequent  to  the  issue  of  the  process,  are  set  aside  by 
the  court  whence  it  issued;  the  plaintiff  in  such  process  cannot 
protect  himself  under  it,  in  an  action  brought  for  the  property 
delivered  to  him  by  virtue  thereof.'' 

§  29.  Where  personal  property  is  taken  in  execution  and 
claimed  on  a  replevin  by  a  third  person,  it  cannot  be  taken  from 
his  possession,  during  the  pendency  of  the  replevin  suit,  by  any 
writ  or  execution  against  the  party  as  whose  property  it  had  been 
originally  seized,  unless  he  had  acquired  some  new  title  to  it,  or 
unless  the  replevin  suit  was  fraudulently  instituted  as  a  cover 
against  creditors.^ 

§  30.  Replevin  lies,  where  property  of  the  plaintiff  is  taken  on 
execution  against  a  third  person,  peaceably  restored  to  the  plaiu- 
tiflF,  and  retaken  by  the  sherifl'.*^ 

»  Booth   V.   Ablcman,   18    Wis.  495.  *  Smith  v.  Snyder,  l/")  Wend.  324. 

'^  Lewis  V.  Buck,  7  Minn.  104.  5  ]{|iines  r  Plieips,  8  (Jilm.  455. 

3  Dodpe  V.  Chandler,    13   Minn.   114;  6  HaU  i.  Tuttle,  2  Wend.  475. 

La    Crosse,   &c.,   Co.   v.   Robertson,    ib. 
291. 


62  REPLEVIN.  [book   I. 

§  31.  A.  fi.  fa.  was  issued  in  the  county  of  0.  against  A,  B,  & 
C,  under  which  the  slieriff  seized  liousehohl  furniture  belonging 
to  A,  and  certain  property  in  the  possession  of  B,  but  not  enough 
to  satisfy  the  fi.  fa.  The  title  to  the  last-mentioned  property 
being  disputed  by  D,  he  replevied  it;  and,  after  the  return-day 
of  the  fi.  fa.,  the  replevin  being  still  pending,  other  property 
belonging  to  C  was  discovered,  whereupon  a  second  fi.  fa.  was 
issued  to  the  same  county,  and  C's  property  seized  under  it,  the 
first  Ji.  fa.  not  having  been  returned.  Held,  the  second  fi.  fa. 
was  irregularly  issued.  The  officer  may  in  such  case  return  the 
seizure  under  the  first  fi.fa.,  together  with  the  fact  of  replevin, 
and,  if  the  goods  be  afterwards  restored,  they  may  be  disposed 
of  in  virtue  of  a  venditioni  exponas.^ 

§  32.  Keplevin  lies  in  favor  of  an  attaching  officer.^  So  the 
levy  of  an  execution  gives  to  the  officer,  while  the  execution 
remains  in  his  hands,  such  a  special  property  in  the  goods  as 
enables  him  to  maintain  replevin.^  Thus  a  levy  on  stacks  of  grain, 
with  a  direction  to  the  execution  defendant  and  others  not  to 
touch  them,  is  sufficient,  without  any  manual  seizure,  to  enable 
the  officer  to  maintain  replevin  against  a  stranger  taking  them 
away.*  So  one  deputy  sheriff  may  have  replevin  against  an- 
other deputy  of  the  same  sheriff,  for  goods  which  he  claims  in 
virtue  of  a  prior  attachment  made  by  him.  "  Although  servants 
of  the  same  master,  they  act  independently  of  each  other ;  and 
the  one  who  first  makes  an  attachment,  acquires  a  special  prop- 
erty.'" ^  But  a  constable,  who  has  levied  an  execution  on  goods, 
after  the  execution  and  levy  have  been  set  aside,  has  not  such  a 
property  in  the  goods  as  will  sustain  replevin  against  the  credi- 
tor, to  whom  he  had  delivered  the  goods  for  safe-keeping.*^  And 
where  goods  are  attached,  and  replevied  from  the  sheriff  by  a 
coroner;  the  creditor  attaching  cannot  maintain  an  action  against 
the  coroner  for  taking  insufficient  pledges,  or  for  other  misfeas- 
ances in  the  service.  Such  action  lies  for  the  sheriff  only,  who 
has  a  special  property  in  the  goods,  the  general  property  being 
in  abeyance." 

§  33.  It  is  held,  that  replevin  lies  by  a  receiptor  against  the 
execution  defendant.^     But  not  against  a  receiptor.^ 

1  Ledyard  v.  Buckle,  5  Hill,  571.  ^  Walpole  v.  Smith,  4  Blackf.  304. 

2  Fitch  V.  Dunn,  3  Blackf.  142.  1  Ladd  v.  North,  2  Mass.  514. 

3  Dunkin  v.  McKee,  23  Ind.  447.  8  Miller  v.  Adsit,  16  Johns.  335. 

*  Gallagher  v.  Bishop,  15  Wis.  276.  ^  Chapman  v.  Andrews,  3  Wend.  240. 

^  Gordon  v.  Jenney,  16  Mass.  465. 


CH.  v.]   REPLEVIN  FOR  PROPERTY  TAKEN  BY  LEGAL  PROCESS.    53 

§  34.  A  purchaser  of  goods  at  a  slieriff 's  sale  may  maintain 
replevin  for  tliem,  after  demand  and  refusal. ^  On  the  other  hand, 
an  owner  of  property  may  bring  replevin  against  one  who  pur- 
chased the  property  at  a  sale  upon  an  execution  against  a  third 
pei-son.^  The  distinction  is  made,  that  such  jiurchaser,  who  par- 
ticipates in  the  transaction  only  by  purchasing,  altlujugh  he  knows 
of  the  illegality  of  the  sale,  or  that  the  goods  did  not  belong  to 
the  defendant  in  the  execution,  is  liable  to  the  owner  in  replevin, 
but  not  in  trespass.^  But  it  is  held,  that  goods  irregularly  at- 
tached by  an  officer  are  not  in  the  custody  of  the  plaintiff  in  the 
suit,  and  replevin  does  not  lie  against  him.* 

§  3.5.  In  New  York,  a  defendant  in  replevin,  who  puts  in  a 
chiim  of  property,  and  agrees  that  his  possession  shall  be  consid- 
ered the  possession  of  the  sheriff,  until  the  claim  be  tried,  is 
estopped  from  denying  the  sheriff's  possession  ;  and,  on  demand 
and  refusal  to  deliver  up  the  property,  may  be  proceeded  against 
in  the  action  of  replevin.^ 

§  36.  After  levy  and  appraisement  by  an  officer,  he  has  such  a 
special  property  as  will  maintain  replevin,  though  the  goods  be 
left  in  the  defendant's  custody.^  So,  as  against  another  officer 
attempting  to  levy  on  them ;  in  which  case  no  demand  is  neces- 
sary.' 

§  36  a.  An  officer  need  not  produce  in  evidence  the  judgment, 
upon  which  the  execution  under  which  the  levy  was  made  was 
founded.^ 

§  36  b.  Where  a  marshal,  by  virtue  of  mesne  process  from  the 
Circuit  Court  of  the  United  States,  attached  certain  railroad  cars, 
which  were  afterwards  taken  out  of  his  hands  by  the  sheriff  of 
the  State  court,  under  a  re{)levin  writ  brought  by  the  mortgagees 
of  the  railroad  company  ;  it  was  held,  that  the  sheriff  had  no 
right  so  to  replevy  the  property.^ 

§  37.  Replevin  will  lie  against  an  officer,  who  attaches  property 
by  leaving  a  copy  in  the  town-clerk's  office.^^  So  where  goods  in 
the  hands  of  a  bailee  are  attached  as  his  property  and  receipted 
for,   replevin   lies  against  the  attaching  officer  by  the   general 

1  Tlazzanl  r.  Burton.  4  Harring.  ()2.  <>  Polite  v.  Jefferson,  5  Ilarrin?.  088. 

■-!  l)o(l(l  V.  McCraw,  3  Eng.  83;  Iluber  ^  Pugh  v.  Callowa3%  10  Ohio  (N.  S.), 

V.  Sliaivk,  2  Browne,  KiO.  488. 

»  Ward  V.  Taylor,  1  Penn.  238.  8  ib. 

*  Copan     r.    Stoutenburgh,    7    Ham.  ^  Freeman  r.  Howe,  24  How.  450. 

(part  2)   133.     See  p.  44.  10  Angell  c.  Keith,  24  Vt.  371. 

5  Baker  v.  McDuffie,  23  Wend.  289. 


54  REPLEVIN.  [book  I. 

owner,  although  the  goods  remain  in  the  possession  of  the  bailee, 
the  attachment  not  being  dissolved.^  But,  to  bring  a  case  of 
replevin  within  §  2  of  the  Pennsylvania  Act  of  April  3,  1779,  it 
must  appear  that  the  goods,  when  replevied,  were  in  the  posses- 
sion, custody,  or  control  of  the  sheriff.^ 

§  38.  Where  goods  have  been  taken  by  a  sheriff  by  a  writ  of 
replevin,  they  cannot  be  taken  from  him  by  another  writ  of  re- 
plevin, at  common  law,  nor  by  statute.^  (See  chap.  1,  §  17.)  If 
one,  from  whom  goods  are  taken  by  a  writ  of  replevin  against 
him,  himself  replevies  them  ;  it  is  held  that  the  second  writ  will 
be  superseded,  with  costs,  upon  motion  made  before  return  of 
the  writ,  or  set  aside  after  the  return.* 

§  39.  Where  property  had  been  first  replevied,  and  there  was 
evidence  that  the  plaintiffs  in  that  suit  had  vyaived  delivery  to 
them  under  their  writ,  and  it  was  then  taken  upon  a  subsequent 
writ  of  replevin;  the  court  will  not  instruct  the  jury  that  the 
plaintiff  cannot  recover,  if  they  find  that  such  subsequent  writ 
issued  while  the  property  was  in  possession  of  the  sheriff.  But 
the  objection  may  be  made,  unless  there  is  evidence  of  such 
waiver,  although  the  defendant  subsequently  may  agree  to  waive 
the  irregularity,  and  to  ratify  and  confirm  the  proceedings  of  the 
sheriff.^ 

§  40.  Trespass  cannot  be  maintained  by  the  owner  of  goods 
against  a  sheriff,  for  taking  them  under  a  writ  of  replevin  against 
another  person  having  the  goods  in  his  possession.  The  law  fully 
recognizes  the  owner's  right,  and,  if  he  can  without  force  obtain 
the  property,  will  not  hold  him  a  wrong-doer  for  taking  it ;  but  it 
withholds  from  him  an  affirmative  remedy  by  action  against  a 
ministerial  officer  ;  allowing  him  an  action  only  against  other  per- 
sons concerned  in,  or  who  instigated,  the  taking.*' 

§  41.  Where  attached  goods  are  replevied  from  the  officer,  a 
judgment  for  the  plaintiff  in  replevin  is  conclusive  evidence  of 
his  title  against  the  attaching  creditor,  and  against  one  who  has 
made  a  second  attachment  after  notice  of  the  replevin ;  though 
the  latter  erroneously  supposed  the  former  would  defend  the 
replevin  suit." 

1  Small  V.  Hutchins,  1  App.  255.  5  Powell  v.  Bradlee,  9  Gill  &  Johns. 

2  Weed  V.  Hill,  2  Miles,  122.  220. 

3  Sanborn  r.  Leavitt,  43  N.  H.  473.  «  Foster  v.  Pettibone,  20  Barb.  350. 
*  Morris  v.  Dewitt,  5  Wend.  71.    But          ^  Carlton  v.  Davis,  8  Allen,  94. 

see  Lovett  v.  Burkhardt,  8  Wright,  174. 


CH.  v.]   REPLEVIN  FOR  PROPERTY  TAKEN  BY  LEGAL  PROCESS.    55 

§  42.  Goods  found  in  possession  of  A,  an  execution  defendant, 
were  levied  on  by  the  sljerifT.  B  claimed  the  goods  as  his,  and  a 
jury,  summoned  to  try  the  right  of  property,  found  that  they 
belonged  to  A.  Held,  in  replevin  by  B  against  the  sheriff,  that 
the  finding  of  the  jury  was  not  conclusive  against  B.^ 

§  43.  If  an  officer  voluntarily  or  collusively  suffers  property 
to  be  retained  by  the  replevin  plaintiff,  after  judgment  in  the 
officer's  favor,  it  is  an  injury  to  the  execution  defendant.  It  is 
the  duty  of  the  officers  to  use  ordinary  diligence  to  procure  a 
proper  judgment  on  the  replevin  bond.^ 

§  44.  In  replevin  for  a  horse  seized  on  a  Ji.fa.,  irregularities 
in  the  proceedings  before  the  justices  cannot  be  taken  advantage 
of.3 

§  45.  In  an  action  of  replevin  against  a  sheriff  for  the  act  of 
his  deputy,  it  is  sufficient  for  the  plaintiff  to  show  that  the  deputy 
was  a  deputy  of  the  defendant,  and  that  he  acted  colore  officii,  in 
order  to  make  his  declarations  in  relation  to  his  official  acts 
admissible  in  evidence  against  the  sheriff.* 

§  45  a.  Where  replevin  is  brought  for  property  taken  in  the 
hands  of  A,  by  a  sheriff,  which,  two  months  afterwards,  is  restored 
to  A ;  this  is  no  answer  to  the  action.^ 

§  45  h.  In  case  of  replevin  for  a  seizure  on  execution  and  sale; 
it  is  held  that  the  plaintiff  cannot  prevail  upon  the  ground  that 
the  property  is  exempt  from  execution.^ 

§  46.  Sect.  216  of  the  New  York  Code,  requiring  an  affidavit 
of  property  to  be  served  on  the  sherifi"  taking  personal  property, 
claimed  by  a  person  other  than  the  defendant  or  his  agent,  applies 
only  when  the  taking  was  in  the  proper  discharge  of  his  dut}', 
not  wrongful.'^ 

§  47.  In  Ohio,  a  party  replevying  property  from  a  constable 
who  has  levied  an  execution  upon  it,  upon  the  ground  of  a  pur- 
chase prior  to  such  levy,  upon  executing  the  undertaking  required 
by  law,  acquires  the  riglit  of  possession  and  all  the  officer's  inter- 
est by  virtue  of  the  levy,  paramount  to  any  title  under  a  subse- 
quent levy  ;  although  such  purchase  be  found  fraudulent  and 
void  against  creditors.  And  an  action  of  replevin  lies  against  a 
purchaser  under  the  subsequent  levy.^ 

1  Cliinn  )-,  Russell,  2  Blackf.  172.  «  Ilowlaml  v.  Fuller,  8  Min.  50.     See 

-  Stewart  r.  Nuneinaker,  2  Cart.  47.  p.  41. 

3  Haiioiil  r.  Griflie,  8  Md.  54.  ^  Kinfj  v.  Orscr,  4  Dvrer,  431. 

<  Stewart  v.  Wells,  6  Barb.  79.  8  dittendcn   v.   Lingle,    14    Ohio    St. 

5  Caldwell  v.  Arnold,  8  Min.  265.  182. 


56 


EEPLEVIN. 


[book  I. 


§  48.  In  New  York,  in  replevin,  the  judgment  being  for  dam- 
ages only  in  favor  of  the  plaintiff,  the  sheriff  is  not  liable  for  such 
damages  by  reason  of  the  failure  to  justify  sureties,  who,  on  the 
arrest  of  the  defendant  in  replevin,  had  given  an  undertaking  for 
delivery  of  the  property,  if  adjudged,  and  for  the  payment  of 
such  sum  as  for  any  cause  might  be  recovered  against  such  de- 
fendant. To  render  him  liable,  there  must  be  a  judgment,  under 
the  execution  upon  which  the  property  might  be  sought  and 
delivered.! 

§  49.  In  an  action  against  an  officer  and  his  sureties  on  his 
official  bond,  for  taking  the  property  of  A,  under  a  writ  of  re- 
plevin against  B ;  a  verdict  and  judgment  against  the  officer,  in 
an  action  of  trespass  for  such  taking,  are  p7'imd  facie  evidence 
for  the  plaintiff,  though  the  sureties  had  no  notice  of  the  former 
suit.^  (a) 

1  Galaraliv.  Orser,27N.Y.  (13  Smith)  ^  gtate,  &c.  v.  Jennings,  14  Ohio.  St. 

277.  73. 


(ff)  It  has  been  held  that  the  owner  of 
goods,  wronst'ully  levied  upon  by  the 
marshal  of  tlie  federal  court,  may  sustain 
replevin  against  the  marshal.  Hanna  v. 
Steinberger.  6  Blackf  520.  See  Buck  v. 
Colbath,  3  Wall.  335;  Booth  v.  Ableman, 
18  Wis.  495. 

So  that  replevin  may  be  maintained 
in  a  State  court,  against  the  marshal  of 
the  United  States,  by  the  owner  of  goods 
taken  by  such  marshal  by  virtue  of  proc- 
ess issuing  from  a  district  court  of  the 
United  States,  in  favor  of  the  United 
States,  and  under  the  direction  of  the 
district  attorney  of  the  United  States. 
Boner  v.  Ogden,  6  Halst.  370. 

Upon  the  issue  of  non  cepit,  proof  that 
the  defendant  took  the  goods  as  marshal 
is  sufficient  proof  of  the  caption.  I^e 
Wolf  r.  Harris,  4  Mason,  515.  In  the 
case  of  the  Koyal  Saxon,  1  Wall.  311,  it 
was  held,  in  replevin,  that  the  lien  of  an 
attachment  from  a  State  court  under 
which  a  vessel  was  sold  should  have  pre- 
cedence of  a  subsequent  libel  for  mariners' 
wages  in  the  United  States  court. 

Replevin  does  not  lie  for  goods  seized 
for  the  water-tax  of  Philadelphia.  Stiles 
V.  Griffith,  3  Yeates,  82. 

Wiiere  there  is  a  want  of  authority  to 
levy  a  tax,  replevin  will  lie  for  property 
seized  by  the  officer  for  payment  of  the 
tax.  Otherwise,  where  there  is  authority 
irregularly  exercised.  Buell  v.  Ball,  20 
Iowa,  282. 

Mich.   Com.  Laws,  c.    152,  providing 


that  "no  replevin  shall  lie  for  any  prop- 
erty taken  by  virtue  of  any  warrant  for 
the  collection  of  any  tax,"  applies  only  to 
cases  in  which  a  valid  tax  might  by 
legal  possibility  have  been  imposed  and 
collected  by  regular  and  proper  proceed- 
ing under  some  statute  au  hority.  Other- 
wise, the  fact  that  a  warrant  is  regular 
on  its  fiace,  and  discloses  no  illegality  of 
the  tax,  will  not  protect  the  collector, 
in  an  action  of  replevin  for  the  property 
levied  upon.  Le  Roy  v.  East,  18  Mich. 
233.  Where  the  taking  is  wrongful  as 
against  the  plaintiff,  and  he  establishes 
his  riijht  to  the  property  ;  no  prior  de- 
mand is  necessary.     lb. 

Replevin  will  not  lie  against  an  officer 
acting  under  a  warrant  for  the  collection 
of  taxes  assessed  by  a  board  having  com- 
petent authority  and  jurisdiction,  al- 
though erroneously  assessed.  Bilbo  v. 
Henderson,  21  Iowa,  5(5.  Kor  if  a  por- 
tion of  the  tax  is  legally  assessed.  Emer- 
ick  V.  Sloan,  18  Iowa,  139. 

Where  a  defendant  justifies  as  collec- 
tor of  taxes,  he  need  not  set  out  the  war- 
rant in  full.  jMount  v.  Andrews,  53  111. 
176.  Where  the  defendant  justifies  as 
collector  of  taxes  ;  a  replivation,  in  order 
to  question  his  authority,  must  deny  that 
he  was  collector  ehher  de  inif  or  de  facto. 
Mount  V.  Andrews,  53  111.  176.  A  rep- 
lication, denying  the  existence  of  the 
corporation  of  which  the  defendant 
claimed  to  be  collector,  is  bad.     lb. 

Property   seized  for  a  tax,  under  an 


CH.  v.]   REPLEVIN  FOR  PROPERTY  TAKEN  BY  LEGAL  PROCESS.    57 


act  of  Congress,  and  a  warrant  on  its 
face  rejiular,  cannot  lie  replevieil.  Tlie 
constitutionality  of  the  act,  or  reyrnlarit^' 
of  tlie  ))n)cee(linfrs,  can  bo  tric'(l  only  in  a 
proctH'tlinij  for  damages.  O'lieilly  v. 
Good,  42  Barb.  521. 

"  The  constitutional  relation  of  the 
State  to  the  United  States,  and  the  most 
self-evident  considerations  of  i)id)lic  pol- 
icy," are  held  to  forbid  sucli  J)r()(•eodinf,^ 
"  Innniner:il)le  replevin  suits  niiyht  ileia_v, 
if  not  wholly  defeat,  the  collection  of  the 
national  revenue."  Per  Sutherland,  J., 
p.  52. 

Replevin  does  not  lie  for  property 
taken  on  a  warrant  against  the  owner, 
issued  by  a  magistrate  having  jurisdic- 
tion under  a  valid  statute.  Musgrave 
V.  Hall,  40  Maine,  4'J8. 


Nor  against  a  ndlitary  officer  author- 
ized by  the  legislature  to  detain  the 
goods.     Gist  V.  Cole,  2  N.  &  Mc(".  4.%. 

Nor  for  ])ro])erty  seized  for  non-i)ay- 
ment  of  a  militia  tine.  Pott  v.  Uldwine, 
7  Watts,  173. 

A  messenger  in  insolvency,  liolding 
goods  for  wliich  a  vendee  of  the  in.solvent 
debtor  has  made  a  demand,  ma\'  show 
the  title  of  such  vendee  in  bar  of  an  ac- 
tion of  replevin  brought  by  A,  wlio  claims 
under  a  contract  of  sale  with  the  debtor. 
Ropes  ?'.  Lane,  9  Allen,  r>02. 

It  is  held,  that  re])levin  does  not  lie  for 
pro])erty  seized  for  a  sheriff's  fee-bill. 
Morgan  v.  Craig,  Hard.  101. 


58  REPLEVIN.  [book   I. 


CHAPTER   YI. 

PARTIES   IN    REPLEVIN. 

1.  Servnnt,  a?pignee,  &c.  23.  Parish. 

1  d.  Joint  parties  —  plaintiffs.  24.  Buyer  or  seller,  in  case  of  alleged  fraud. 

11.  Joint  defendants.  28.   Conditional  sale. 

15.  Dentil  of  a  party  interested.  31.  Mistake. 

20.  Husl):ind  and  wife.  33.  Replevin  in  case  of  mortgage,  pledge, 

22.  Principal  and  agent.  and  lien. 

§  1.  One  having  charge  of  goods  as  a  servant  cannot  maintain 
replevin  for  them.^  On  the  other  hand,  the  lender  of  a  chattel, 
sold  by  the  borrower,  may  maintain  replevin  against  any  one  in 
possession.^ 

§  1  a.  Where  personal  property  is  wrongfully  detained,  the 
owner  may  assign  his  title,  and  his  absolute  or  qualified  assignee 
can  maintain  replevin  therefor,  whether  he  ever  had  possession 
of  the  property  or  not.^ 

§  1  6.  A  plaintiif  in  replevin  cannot  recover  against  one  not  in 
possession  or  control  of  the  property."*  More  especially  if  the 
defendant  did  not  claim  any  interest  in  the  property,  or  collude 
with  a  co-defendant  with  regard  to  it.^  Thus  where  the  plaintiff 
went  to  the  defendant's  house  to  demand  the  property,  and  the 
defendant  disclaimed  all  ownership  or  control  of  it,  but  told  the 
plaintiff  who  was  the  owner,  and  advised  the  owner  to  retain  it.^ 
But  replevin  will  lie  against  one  who  has  control  of  property, 
although  it  is  in  the  hands  of  another,'''  So  against  one  or  all  the 
members  of  a  firm,  when  one  is  in  possession  claiming  for  all.^ 

§  1  c.  The  plaintiff,  in  replevin  for  a  horse,  obtained  the  horse 
from  the  defendant's  special  agent  for  the  care  of  the  animal, 
who  had  been  instructed  not  to  deliver  him  to  the  plaintiff  until 
he  was  paid  for,  to  try,  until  a  certain  day,  when  he  was  to  return 

1  Harris  v.  Smith,  3  S.  &  R.  20.    See         5  Coffin  v.  Gephart,  18  Iowa,  2.56. 
p.  64.  6  Johnson  v.  Garlick,  2-5  Wis.  705. 

2  Roland  v.  Gundy,  5  Ohio,  202.  1  Bradley  v.  Gamelle,  7  Minn.  3.31. 

3  Lazard  v.  Wheeler,  22  Cal.  139.  8  Howe  v.  Shaw,  56  Maine,  291. 
*  Myers    v.    Credle,    63    N.    C.    504; 

Ramsdell  v.  Buswell,  54  Maine,  546. 


CH.  VI.]  PARTIES   IN   REPLEVIN.  59 

or  pay  for  him.  The  defendant  gained  possession  of  the  horse 
without  the  plaintiff's  knowledge,  after  the  appointed  day  had 
passed  without  payment.   ITehl,  the  action  could  not  be  maintained.^ 

§  1  d.  One  joint  tenant  or  tenant  in  common  cannot  maintain 
replevin  against  the  other,'-^  "  because  they  liave  each  and 
equally  the  right  of  possession."*'^  Thus  one  cannot  maintain 
replevin  against  the  other  for  taking  all  the  crops.*  So  one  ten- 
ant in  common  of  a  horse  cannot  maintain  an  action  against  the 
other,  where  it  was  agreed  that  the  latter  might  retain  the  horse 
for  breaking,  exhibition,  and  sale.^  So  replevin  does  not  lie 
until  a  formal  division  or  settlement,  where  two  make  a  crop 
togetlier,  which  is  gathered  and  equally  divided,  and  placed  in 
different  cribs  on  the  place,  each  having  a  key  to  a  distinct 
crib,  with  leave  to  feed  his  stock  from  it.^  And,  in  New  York, 
where  one  tenant  in  common  brings  re{)lovin  in  the  detinet,  under 
the  Revised  Statutes,  against  the  bailee  of  the  other,  and  the 
property  is  taken  and  delivered  to  the  plaintiff;  the  defendant  is 
entitled  to  a  verdict  and  judgment  for  the  full  value  of  the  prop- 
erty, on  waiving  judgment  for  its  return."  So  where  one  tenant 
in  common  sells  a  right  to  cut  timber  on  the  land,  the  other  can- 
not replevy  it.*  So  it  is  held,  that  one  of  two  joint  owners  of 
goods  cannot  maintain  replevin  to  recover  them  of  a  stranger;^ 
nor  for  his  undivided  sharc^*^  Non-joinder  of  part-owners  may 
be  pleaded  in  bar  or  abatement,^^  or  made  a  ground  of  motion  in 
arrest  of  judgment.^2  And  if  it  appear,  from  the  plaintiff's  own 
showing,  that  he  is  but  part-owner,  the  court  will  abate  the  writ 
ex  officio}^ 

§  2.  But  the  distinction  is  made,  in  a  case  of  authority,  that 
replevin  will  not  lie  by  one  joint  owner  ;  but  the  objection  can 
only  be  taken  by  a  plea  in  abatement,  where  he  sues  for  the 
whole.  If"  he  sues  for  a  moiety,  the  court  will  ex  officio  abate 
the  writ.^*  And,  in  New  York,  one  having  a  general  or  specific 
property  in  goods,  either  alone  or  in  connection  with  others,  can 

1  JefTcTson  r.  Cliase,  1  Ilonst.  210.  8  Alford  v.  Bratlcen,  1  Neva.  2'28. 

-  Kiissi'l  I'.  Allen,  8  Seld.  17:^;    Barnes  ^  M'Artlier    v.    Lane,   3    Sliep.    245; 

V.   Bartlett,  15  Pick.  71  ;  Wills  v.  Noyes,  Low  v.  Martin,  18  III.  28G  ;  2  Saun.  116, 

12  ib.  324;  M'EUU'ry  v.  Flannapm.  1  liar.  n.  2. 

&  (Jill,  308  ;  Noble  r.  Epperlv,  0  Ind.  414.  >»  Ellis  &  Culver,  1  Har.  76;  Pritcliard 

3  Per  Sliaw,    C.  .1.,  lo  Pick.  75;  Hoi-  v.  Culver,  2  ib.  12<t. 

ton  v.  Binns,  40  Miss.  4'.il.  l'  Co.x  v.  Marrow,  14  Ark.  fiOS. 

*  Silloway  )•.  Brown,  12  Allen.  30.  '-  Pritcliard  r.  Culver,  2  Mar.  120. 

5  Newton  v.  Gardner,  24  Wis.  282.  '=•  Hart  >-.  FitZL'crald,  2  .Mass.  5(('J. 

6  Usry  V.  Rainwater,  40  (Jeo.  328.  '<  l)"\Volf"  v.  Harris,  4  Mass.  515.     See 
1  liussel  V.  Allen,  2  Seld.  173.  Talvande  v.  Cripps,  3  M'Cord,  147. 


60  REPLEVIN.  [book   I. 

rniiiiitain  replevin  in  tlie  ddinet  against  a  stranger.  Joint  owner- 
ship with  others  is  no  bar  to  the  action,  either  under  the  plea  of 
non  ddinet  or  a  special  plea;  although  it  would  be  proper 
matter  for  a  plea  in  abatement.  If  the  defendant  connect  him- 
self with  the  title  through  any  of  the  owners,  he  may  avail  him- 
self of  the  rights  thus  acquired  in  bar  of  the  action.  But,  as 
a  stranger,  he  will  not  be  permitted,  by  a  technical  defence,  to 
defeat  the  claim  of  a  person  entitled  to  the  possession  as  against 
him.i 

§  3.  The  general  rule  will  not  be  applied  as  against  a  plaintiff 
in  replevin,  unless  the  case  is  strictly  one  of  joint  or  common 
ownership.  Thus,  A  being  possessed  of  a  quantity  of  coffee  in 
bags,  of  which  a  certain  part,  contained  in  a  number  of  bags,  not 
distinguished  by  marks,  nor  in  any  manner  separated  from  the 
rest,  was  the  property  of  B  ;  a  creditor  of  A  caused  the  whole  to 
be  attached  as  the  property  of  A.  B  replevied  from  the  sheriff 
the  quantity  owned  by  him;  and,  issue  being  joined  on  B's  prop- 
erty, and  a  verdict  found  for  him,  he  had  judgment.  The  parties 
were  not  tenants  in  common.  Though  the  bags  of  the  plaintiff 
had  no  distinguishing  marks,  he  might  have  taken  the  number 
and  the  quantity  of  coffee  to  which  he  was  entitled  by  his  own 
selection.  If  a  return  were  to  be  ordered,  the  defendant  would 
still  be  accountable  to  the  plaintiff  for  the  proceeds.^  So  A  was 
to  furnish  wheat  to  stock  a  mill,  and  B,  with  money  advanced  by 
A,  to  purchase  wheat  and  convert  it  into  flour,  and,  after  deduct- 
ing the  original  cost  of  the  wheat,  and  two  and  a  half  per  cent, 
thereon,  to  receive  the  proceeds  of  the  sale  of  the  flour.  If 
the  wheat  is  levied  on  as  the  property  of  B,  A  may  maintain 
replevin  to  recover  it.^  So  where,  in  an  action  of  replevin,  there 
is  proof  tending  to  show  that  a  part  of  the  goods  belong  to  a 
third  person,  the  defendant  is  entitled  to  a  verdict  for  the  value 
of  those  goods.^  So  where  grain  belonging  to  different  owners 
has  been  stored  in  mass  with  their  consent,  each  may  maintain 
replevin  for  his  share,  subject  to  deduction  of  his  proportion  of 
loss  or  waste  while  in  mass.  As  where,  after  shipments  from  the 
mass  until  a  quantity  not  greater  than  that  due  the  plaintiff  was  left, 
the' warehouseman  disposed  of  the  wheat  wrongfully.^  So  the  gen- 

1  Wright  V.  Bennett,  3  Barb.  451.  *  Morss  v.  Stone,  5  Barb.  516. 

'^  Gardner  v.  Dutch,  9  Mass.  427.  ^  Young  v.  Miles,  20  Wis.  G15. 

3  Johnson  v.  Miller,  16  Ohio,  431. 


CH.  VI.]  PARTIES   IN   REPLEVIN.  61 

eral  agent  of  a  whaling-ship,  at  a  port  wlierc  it  is  tlie  usage  for 
such  agents  to  take  possession  of  supplies  remaining  on  l)oard  at 
the  end  of  a  voyage,  and  distribute  or  sell  them  in  settlement, 
may,  after  demand,  bring  replevin  against  the  master  for  the 
supph'es,  although  both  parties,  with  others,  are  joint  owners  of 
the  supplies  and  the  vessel.  The  plaintiff  has  the  exclusive 
right  of  possession. 1  But  if  A,  a  warehouseman,  mix  the  goods 
of  B,  the  plaintiff,  with  his  own,  so  that  they  cannot  be  distin- 
guished apart,  but  not  wrongfully  or  without  B's  consent ;  B 
cannot  maintain  replevin  for  his  goods  against  A,  as  they  become 
joint  owners  of  the  whole.^ 

§  4.  A  partner  cannot  maintain  replevin  against  his  copartner 
for  any  of  the  partnership  property.  And  where  one  partner  has 
in  his  possession  partnership  property,  which  the  other  takes  from 
him,  and  the  former  replevies,  the  defendant  is  entitled  to  judg- 
ment pro  retorno ;  for,  where  one  has  been  deprived  of  his  prop- 
erty by  an  abuse  of  the  process  of  the  law,  the  law  should  restore 
it,  and  place  the  parties  iti  statu  quo.^  But  a  partner  may  main- 
tain replevin  for  his  interest  and  right  of  possession.^ 

§  5.  In  Kentucky,  replevying  a  judgment  against  one  obligor 
is  a  legal  discharge,  not  only  of  the  judgment  for  which  it  was 
executed,  but  of  a  separate  judgment  against  another  for  the 
same  debt.^ 

§  6.  In  New  York,  an  action  for  the  penalty  given  by  the  stat- 
ute, against  an  officer  who  makes  a  deliverance  of  property  under 
a  writ  of  rejjlevin,  before  trying  the  validity  of  a  claim  of  prop- 
erty interposed,  must  be  brought  in  the  names  of  all  the  claim- 
ants ;  and  this,  although  one  was  a  landlord  and  the  other  his 
baililf  in  making  a  distress  for  rent,  against  whom  a  joint  action 
of  replevin  was  brought.''  And  the  defendant  need  not  plead 
non-joinder  in  abatement,  but  may  avail  himself  of  it  at  the 
trial.' 

§  7.  If  a  constable  deliver  to  the  owner  property  taken  under 
execution,  thereby  enabling  him  to  impose  on  three  persons  hav- 
ing claims  ;  they  may  replevy  the  property.^ 

§  8.  Where   a    sheriff'  takes    partnership   property    in    a   suit 

1  Kich  V.  Rvdcr,  105  Mass.  306.  5  Justices,  &c.  t;.  Lee,  1  Mon.  327. 

'-'  Low  (•.  Martin,  18  111.  286.  «  Colton  v.  Mott,  15  Wend.  619. 

3  Whitesidcs  v.  Collier,  7  Dana,  283.  "^  lb. 

*  Bostick    V.    Hrittaiii,   25  Ark.   482;  8  Mulholm  v.  Cheney,  Addis.  301. 
Smith  V.  Wood,  31  Md.  2y3. 


62  REPLEVIN.  [book.    I. 

against  one  of  several  partners,  and  removes  it  to  a  place  of 
safety ;  the  others  cannot  bring  replevin. ^ 

§  9.  Replevin  cannot  be  maintained,  either  at  common  law  or 
under  the  Connecticut  statute,  by  one  joint  owner  of  a  personal 
chattel,  against  another  joint  owner,  for  a  taking  away  of  the 
joint  property,  by  virtue  of  a  writ  of  attachment  against  a  third 
person.- 

§  10.  Personal  property  owned  in  common  being  attached 
against  A,  one  of  the  owners,  and  replevin  brought  in  the  name 
of  all  against  the  officer,  and  dismissed;  the  measure  of  damages 
in  an  action  on  the  bond  is  the  value  of  A's  interest.^ 

§  11.  The  seller  of  goods  may  bring  a  joint  action  to  recover 
them,  against  the  fraudulent  purchaser,  and  his  assignee  for  ben- 
efit of  creditors,  to  whom  the  goods  have  been  delivered,  and 
who  refuses  to  give  them  up  on  demand.  It  is  said  by  the  court, 
*'  the  Code  provides  that  any  person  may  be  made  a  defendant 
who  has  or  claims  an  interest  in  the  controversy  adverse  to  the 
plaintiff,  or  who  is  a  necessary  party  to  a  complete  determination 
or  settlement  of  the  questions  involved  therein.  Both  these 
defendants  claim  an  interest  in  the  goods  adverse  to  the  plain- 
tiffs ;  Pumer  claiming  that  the  purchase  of  the  goods  was  free 
from  fraud,  and  that  they  should  be  retained  by  his  assignee,  and 
disposed  of  for  the  benefit  of  creditors — Michael  claiming  the 
possession  for  the  same  purpose,  and  refusing  to  surrender  on 
demand."* 

§  12.  A  judgment  for  the  plaintiff  in  replevin,  against  one  of 
two  joint  takers  of  goods,  for  a  part  of  the  goods  taken,  is  a  bar 
to  a  subsequent  action  against  both  to  recover  damages  for  the 
same  trespass,  if  the  other  goods  are  not  shown  to  have  been  con- 
cealed, or  otherwise  disposed  of,  so  that  they  could  not  be  re- 
plevied.^ 

§  13.  The  owner  of  property,  attached  in  a  suit  against  another, 
may  maintain  replevin  therefor  against  the  attaching  creditor  and 
the  officQr  jointly,  when  the  former  assisted  in  taking  the  prop- 
erty, and  took  it  into  his  own  possession  after  the  attachment.^ 

§  14.  In  replevin  against  two  or  more,  one  may  be  found  guilty 
and  the  others  not  guilty.'    But  where,  in  replevin  against  A  and 

1  Scrugham  v.  Carter,  12  Wend.  131.  5  Bennett  v.  Hood,  1  Allen,  47. 

2  Prentice  v.  Ladd,  12  Conn.  331.  6  Esty  u.  Love,  32  Vt.  744. 

3  Bartlett  v.  Kidder,  14  Gray,  449.  ''  Carothers  v.  Van  Hagan,  2  Greene 

4  Nicliols    V.    Micliael,    23    N.    Y.    (9  (Iowa),  481. 
Smith),  264;  per  James,  J.,  269. 


CH.  VI.]  PARTIES    IN   REPLEVIN.  63 

B,  the  sheriff  seized  the  property  and  executed  the  writ  on  A, 
and  made  return  without  service  on  15,  and  the  plaintill"  declared 
against  both,  and  neither  appeared  ;  heki,  judgment  by  deiault 
against  both  was  erroneous  as  to  both.^ 

§  15.  The  death  of  a  party  to  the  action  of  replevin  lias  given 
rise  to  some  questions.^ 

§  16.  The  suggestion,  on  record,  of  the  death  of  the  defendant, 
is  held  to  abate  the  action,  and  it  cannot  be  revived  against  the 
administrator."^  And  the  distinction  is  taken  in  an  early  case  in 
Massachusetts,  that,  "  if  the  defendant  in  replevin  die  pending 
the  suit,  his  executor  or  administrator  cannot  come  in  and  defend, 
because  the  action  is  founded  on  a  tort  which  does  not  survive. 
But  if  the  plaintifl"  in  replevin  die,  his  executor  or  administrator 
may  come  in  and  prosecute,  within  the  equity  of  the  statutes  of 
4  Ed.  111.  c.  7,  &  31  Ed.  III.  c.  11."'*  And  in  a  subsequent  case 
it  was  held,  that  the  administrator  of  a  deceased  del'endant  in 
replevin  could  not  be  admitted  on  his  motion  to  defend  the  suit. 
And  further,  the  action  being  against  a  deputy  sheriff  for  attach- 
ing property  of  the  plaintiff  in  an  action  against  a  third  person  ; 
that  a  statute,  providing  for  the  surviving  of  actions  for  the 
malfeasance  of  the  sheriff  or  his  deputies,  did  not  apply  to  the 
case.^ 

§  17.  In  New  York,  where  a  verdict  Avas  rendered  for  the  de- 
fendant in  replevin  for  a  part  of  the  property,  and  a  new  trial 
ordered,  and  the  defendant  died  after  such  order  and  previous  to 
the  next  circuit;  the  executors  are  not  entitled  to  come  in  and 
ask  that  the  suit  be  contintied  against  thcm.^ 

§  18.  But,  in  South  Carolina,  coheirs,  or  joint  tenants,  with  a 
defendant  in  replevin,  may  come  in  and  defend  an  action  abated 
by  his  death." 

§  19.  Evidence,  that  a  slave  belonged  to  a  person  deceased, 
and  that  the  plaintiff,  his  widow,  administered  jointly  with 
another  person  still  living ;  that  there  were  several  heirs, 
and  had  been  no  distribution  of  the  estate;  and  that  after  the 
death  of  the  intestate  the  plaintiff  obtained  possession  of  the 
negro,  who  had  been  called  her  own  and  been  in  her  possession 

1  Ouly  V.  Dickinson,  5  Cold.  48G.  =  Mellen  v.  Balilwin,  4MabS.  480. 

-  See  Keite  v.  lioyd,  l(j  S.  &  H.  300.  ^  Webber's  Executors  v.  Underhill,  19 

"*  Kector    v.    Chevalier,    1    Mis.   345;  Wend.  447. 
Pitts  ('.  Hale,  3  Mass.  321.  V  Talvande  v.  Cripps,  2  M'Cord,  164. 

*  Tilts  V.  Uale,  3  Mass.  321. 


64  REPLEVIN.  [book   I. 

until  a  short  time  before  suit  commenced  :  were  held  to  clearly 
show  a  want  of  title  in  the  plaintiff  to  support  replevin.^ 

§  20.  It  is  doubted  whether  an  action  of  replevin  in  the  detinet 
will  lie  against  the  wife,  where  the  detention  is  in  fact  the  joint 
act  of  both  husband  and  wife.^ 

§  21.  It  is  held  that  replevin  does  not  lie,  by  husband  and 
wife,  to  recover  chattels,  the  property  of  the  wife  before  mar- 
riage.-^ A  husband  alone  may  replevy  timber  cut  on  the  joint 
property  of  himself  and  his  wife.'*  , 

§  22.  In  reference  to  the  relation  of  principal  and  agent  in  con- 
nection with  replevin  ;  an  auctioneer  who,  as  the  agent  of  the 
owner,  sells  and  delivers  goods  on  a  condition  which  is  not  com- 
plied with,  may  maintain  replevin  therefor.  He  *'  has  a  posses- 
sion, coupled  with  an  interest,  .  .  .  not  a  bare  custody,  like  a 
servant  or  shopman,  but  a  special  property,  with  a  lien  for  the 
charges  of  sale,  the  commission,  and  the  auction  duty,  which  he 
is  bound  to  pay.  .  .  .  The  auctioneer  might  maintain  trespass. 
He  is  liable  to  his  employers  for  the  goods,  or  for  the  price  at 
which  they  were  sold.  .  .  .  He  is  also  the  '  party  entitled  to 
possession,'  within  the  meaning  of  the  Mass.  Rev.  Sts.  c.  113, 
§27."  5 

§  23.  Replevin  may  be  maintained  in  the  name  of  2i  parish  for 
the  parish  records.*^ 

§  24.  Replevin  is  often  founded  upon  an  allegation  o^  fraud, 
and  brought  by  or  against  an  alleged  fraudulent  seller  or  buyer.' 
Thus  it  may  be  brought  in  case  of  purchase  by  false  representa- 
tions, though  upon  credit.^  And  in  an  action  commenced  under 
§  206,  &c.,  of  the  New  York  Code,  for  the  claim  and  delivery 
of  personal  propertj^,  where  the  complaint  is  in  the  form  of  the 
old  declaration  in  replevin  in  the  detinet,  and  charges  that  the 
defendants  have  become  possessed  of,  and  wrongfully  detain, 
the  goods  and  chattels,  and  the  plaintiffs  proceed  upon  the  ground 
that  the  title  to  the  goods  was  never  changed,  but  remained  in 
them,  because  purchased  of  the  plaintiffs,  and  the  delivery  thereof 
procured,  through  the  false  representations  of  the  vendees  as  to 
their  solvency  and  credit ;  proof  of  the  purchase  of  the  goods 

1  Robinson  v.  Calloway,  4  Pike,  94.  ^  T3-ler  v.  Freeman,  3   Cush.  261,  per 

2  Huntington  r.Gilmore,  14  Barb.  243;     Metcalt,  J.,  263.     Seep  68. 

See  Musser  v.  Gardner,  66  Penn.  242.  ti  First,  &c  ,  v.  Stearns,  21  Pick.  148. 

•»  Seibert  v.  ^IcIIenry,  6  Watts.  301.  "^  Hotclikiss  v.  Ashley,  44  Verm.  195. 

*  Fairchild  v.  Cliaustelleux,  8  Watts,  ^  Hail  v.  Gilniore,  40  Maine,  678. 
412. 


CH.  VI.]  PARTIES  IN   REPLEVIN.  65 

by  the  agent  of  the  defendants,  by  their  direction,  and  that  at 
the  time  the  defendants  were  insolvent,  is  competent  evidence 
on  the  question  of  fraud.^  In  such  an  action,  it  is  not  necessary 
that  the  complaint  should  aver  a  demand  of  the  goods,  or  the 
insolvency  of  the  defendants,  or  any  of  the  facts  going  to  estab- 
lish the  fraud.  It  is  sufficient  if  it  is  in  the  form  of  the  old 
declaration  in  replevin  in  the  detinet,  and  charges  that  the  de- 
fendants have  become  possessed  of,  and  wrongfully  hold,  the 
goods  and  chattels.^  And,  to  warrant  a  recovery  against  a  pur- 
chaser from  a  fraudulent  vendee,  the  actual  mala  fides  of  the 
defendant  —  that  is,  his  positive  knowledge  or  belief — is  not  nec- 
essary to  be  proved.  It  is  sufficient  to  prove,  that  the  circum- 
stances known  to  him  were  such  as  ought  reasonably  to  have 
excited  his  suspicions,  and  led  him  to  inquire.^ 

§  2-1  a.  Replevin  lies,  without  demand,  for  property  sold  or 
exchanged  in  consequence  of  false  representations  made  to  the 
owner.  But  he  must  first  restore  whatever  he  has  received  as  a 
consideration,  unless  the  other  party  has  waived  his  right  to  such 
restitution.* 

§  24  6.  A  defendant  in  replevin  alleged  that  the  property 
belonged  to  his  minor  son;  that  he,  as  natural  guardian,  was 
bound  to  keep  it,  and  his  son  was  fraudulently  inveigled  by  the 
plaintiff  to  part  with  it.  Held,  that  the  last  averment  was  sur- 
plusage. Also,  that,  although  the  plea  of  fraud  was  defective, 
in  not  setting  out  the  facts,  evidence  was  admissible  that  the 
plaintiff  acquired  possession  by  fraudulent  representations.^ 

§  24  c.  A  took  from  B  a  sewing-machine  on  a  writ  of  replevin 
sued  out  from  a  justice  of  the  peace,  but,  on  the  day  set  for  the 
trial,  told  her  that  the  suit  had  gone  against  her,  and  that  he  had 
the  costs  to  pay,  and  then  got  the  suit  dismissed  and  paid  the 
costs.  Held,  B  might  replevy  the  machine  in  the  (111.)  Supe- 
rior Court,  her  remedy  on  the  replevin  bond  not  being  exclu- 
sive.^ 

§  24  d.  G.  replevied  goods  fraudulently  delivered  to  him, 
under  a  sale  of  goods  of  a  different  kind,  and  which  had  been 
attached  as  his  vendor's,  but,  discovering  the  wrong  description 
of  the  property  in  his  writ,  altered  his  writ  and  described  it 

1  Hunter  v.  The  Hudson,  &c.,  20  Barb.  <  Thayer  v.  Turner,  8  Met.  550  ;  Frost 
493.                                                                         V.  Lowry,  15  Ohio,  200. 

2  lb.  6  Bliss  ('.  Badger,  3G  Vt.  338. 
8  Pringle  v.  PhiUips,  6  Sandf.  157.  «  Bruner  v.  Dyball,  42  lU.  34. 

5 


66  REPLEVIN.  [book  I. 

correctly.     Held,  as  against  the  fraudulent  vendors,  the  election 
to  take  the  property  was  valid,  and  he  could  hold  it.^ 

§  24  e.  It  is  a  good  defence,  that  the  defendant  purchased  the 
property  for  value,  without  notice  that  it  had  been  obtained  from 
the  plaintiff  by  fraud.^ 

§  24/.  Replevin  lies  for  goods  obtained  by  fraud,  and  paid  for 
by  a  note  on  time  with  worthless  securities,  though  the  plaintiff 
has  transferred  the  note  for  value,  and  never  reclaimed  it.^ 

§  24  g.  Where,  in  replevin  between  the  parties  to  a  sale,  the 
defendant  claimed  the  goods,  in  order  that  he  might  deliver  them 
to  the  assignees  in  insolvency  of  the  vendors,  and  prayed  the 
court  that  an  issue  might  be  framed,  which  would  permit  him  to 
show  that  the  plaintiff's  title  was  acquired  in  fraud  of  the  insol- 
vent laws ;  held,  the  court  was  not  bound  in  this  action  to  try 
the  right  of  the  assignees,  whose  title,  if  any,  accrued  during 
the  pendency  of  the  action.* 

§  24  li.  Under  the  (Iowa)  Code  of  1851,  the  defendant  in  re- 
plevin could  not  attack  the  plaintiff's  right  of  possession  as 
having  been  obtained  through  fraud,  unless  the  fraud  had  been 
specially  pleaded.^ 

§  25.  A  chattel  was  attached,  as  A's,  for  a  just  demand,  but  by 
means  of  a  set-off  the  defendant  recovered  a  balance  with  costs. 
B  claiming  under  a  sale  from  A,  replevied  the  chattel  from  the 
officer,  pending  the  suit.  Held,  the  officer  might  avoid  the  sale 
as  fraudulent ;  although,  after  the  original  judgment,  B  might 
have  a  right  to  the  chattel  as  against  him,  he  having  no  execution 
to  levy  upon  it.*^ 

§  26.  If  tenants  in  common  make  separate  conveyances  to  the 
same  purchaser,  one  of  which  is  fraudulent  and  void  as  against 
creditors ;  the  purchaser  cannot  maintain  replevin  for  such 
property  against  an  officer  attaching  it  as  the  property  of  the 
vendors.  *'  If  either  deed  was  void,  the  plaintiff  would  have  a 
title  to  only  an  undivided  share,  for  which  replevin  could  not  be 
sustained.  ...  If  either  was  the  owner  of  an  undivided  share, 
.  .  .  the  taking  by  the  officer  was  lawful." " 

§  27.  Where  property  is  exchanged  for  other  property,  known 
by  the  party  giving  it  in  exchange  to  have  been  stolen,  and  is 

1  Gardner  v.  Lane,  98  Mass.  517.  5  Gray  v.  Earl,  13  Iowa,  188. 

2  Lee  V.  Portvvood,  41  Miss.  109.  6  Gates  v.  Gates,  15  Mass.  310. 

3  Manning  v.  Albee,  14  Allen,  7.  ^  Kimball  v.  Thompson,  4  Gush.  441 ; 
<  Gardner  v.  Lane,  98  Mass.  517. '  jer  Wilde,  J.  449. 


CH.  VI.]  PARTIES   IN   REPLEVIN.  67 

retaken  by  the  rightful  owner  ;  the  party  injured  may  maintain 
replevin  for  his  property,^  But  where  A  exchanged  a  horse, 
which  he  had  stolen,  with  B,  and  afterwards  sold  B's  horse  to 
C  for  a  valuable  consideration,  and  without  notice,  on  the  part 
of  B,  of  the  theft;  held,  replevin  did  not  lie  by  B  against  C- 

§  27  a.  In  replevin  for  goods  seized  on  execution,  the  plain- 
tiff cannot  question  the  consideration  of  the  note  upon  which 
the  judgment  was  founded.^ 

§  28.  If  an  owner  sell  chattels  on  condition  of  immediate  pay- 
ment, but  waive  the  condition  and  deliver  them  ;  he  parts  with 
the  property,  and  cannot,  in  replevin  for  the  chattels,  avail  him- 
self of  a  fraud  between  the  first  and  a  second  purchaser.^  So  a 
vendor  cannot  maintain  replevin  against  a  vendee,  after  delivering 
a  quantity  of  flour  on  board  a  vessel,  on  a  credit  of  sixty  days, 
the  defendant  refusing  to  give  his  notes,  having  failed  in  the 
mean  time,  and  having  consigned  the  flour  to  a  foreign  house, 
who  had  advanced  money  on  the  consignment.^ 

§  29.  The  defendant  contracted  to  tan  hides  furnished  him  by 
a  firm,  and  return  the  leather  in  reasonable  time,  at  an  agreed 
price  for  tanning  and  transportation,  payable  after  delivery.  He 
carted  a  quantity  of  finished  leather  from  the  tannery,  by  a  dif- 
ferent road,  to  a  different  place  from  the  usual  place  of  shipment, 
to  the  merchants  who  had  furnished  the  hides,  and  there  stored 
them  in  a  barn  never  before  used  for  storage.  Held,  the  evi- 
dence showed  an  intention  to  retain  and  sell  the  leather  as  the 
defendant's  property;  that  he  had  no  lien  upon  it,  inasmuch  as 
delivery  was  to  precede  payment ;  and  that,  in  an  action  of  re- 
plevin brought  by  the  surviving  member  of  the  firm,  an  instruc- 
tion to  the  jury,  that  there  had  been  neither  an  unlawful  taking 
nor  detention,  and  the  action  did  not  lie,  was  erroneous.'' 

§  30.  Where  goods  are  fraudulently  sold  by  a  carrier,  and  the 
purchaser  takes  them  loithoiit  deliver?/,  it  seems  that  replevin  in 
the  cepil  will  lie  by  the  owner  against  the  purchaser,  although  he 
bought  the  goods  in  good  faith." 

§  31.  Mistake,  as  well  as  fraud,  may  be  the  ground  of  an  action 

1  McDonald  i'.  Sniitb,  21  Ark.  4G0.  See  5  ib.  392;  Kurtlians  v.  Owings,  i  Har. 

2  Brown  v.  Canipsall,  6  Har.  &  J.  491.  &  J.  2G3. 

3  Ilotclikiss  V.  Aslilev,  44  Verm.  195.  «  Lee  v.  Gould,  47  Penn.  398. 
*  Mixer  v.  Cook,  31  Maine,  340.  1  Ely  v.  Ehlie,  3  Comst.  50G. 
5  Cleinson  v.  Davidson,  4  Biun.  405. 


68  REPLEVIN.  [book   I. 

of  replevin.  An  inspector  of  tobacco,  by  mistake,  delivered 
to  the  holder  of  certain  notes  other  hogsheads  of  tobacco  than 
those  mentioned  in  such  notes.  The  hogsheads  corresponding 
with  the  notes  were  by  A  delivered  over  to  B,  his  successor,  and, 
on  B's  advertising  them  for  sale,  under  the  Maryland  Act  of  1802, 
c.  27,  they  were  demanded  by  A,  and  an  action  of  replevin 
brought  for  them  by  him.  Held,  that  he  was  not  entitled  to 
recover.^ 

§  32.  A  mortgagee  of  personal  property,  in  the  absence  of  any 
agreement  to  the  contrary,  is  entitled  to  immediate  possession  of 
the  property,  and  may  maintain  replevin  therefor  before  the  time 
of  credit  has  expired.^  More  especially,  after  default  in  payment 
of  a  chattel  mortgage,  the  mortgagee's  title  becomes  absolute  at 
law,  and  he  is  entitled  to  immediate  possession.  Hence  he  may 
maintain  replevin  in  the  cepit  against  any  one  who  tortiously 
takes  the  property  from  the  mortgagor.  So  although,  after  the 
default,  the  mortgagee  filed  a  copy  of  the  mortgage  and  a  state- 
ment, pursuant  to  the  New  York  Act  of  April  29th,  1833  ;  for 
that  will  not  operate  an  extension  of  credit,  or  give  the  mort- 
gagor any  additional  right  of  possession.^ 

§  33.  But  where  it  was  agreed,  at  the  time  of  making  a  mort- 
gage of  a  chattel,  that  the  mortgagor  should  retain  possession ; 
the  mortgagee  cannot  maintain  replevin  against  one  who  takes 
the  chattel.*  In  such  case,  the  mortgagor  has  the  right  of  pos- 
session, and  a  legal  interest  in  the  goods,  capable  of  being  seized 
upon  a  distress  warrant  or  an  execution.^  And  where  the  evi- 
dence conduced  to  prove  that  the  mortgagor  held  the  possession 
by  contract ;  instructions,  that,  if  the  plaintiff  held  a  valid  sub- 
sisting mortgage,  &c.,  the  law  was  for  him,  are  erroneous,  be- 
cause they  did  not  submit  the  question  of  possession  to  the 
jury.*^  But,  in  such  cases,  if  at  the  time  of  trial  the  plaintiff 
have  a  right  to  possession,  the  defendant  cannot  have  judgment 
for  a  return.7 

§  34.  When  a  mortgagee  has  the  right  of  immediate  possession, 
no  demand  is  necessary,  in  order  to  sustain  replevin  against  a 
subsequent  vendee  of  the  mortgagor.^ 

i  Stevenson   v.  Ridgely,  3   Har.  &  J.  ■*  Pierce    v.   Stevens,  30  Maine,  184 ; 

281.  Eedman  v.  Hendricks,  1  Sandf.  32. 

'i  Ferguson  v.  Thomas,  26  Maine,  499.  ^  Eedman  v.  Hendricks,  1  Sandf.  32. 

See    Hutt    v.    Bruckman,  55    111.   441 ;         6  M'Isaacs  v.  Hobbs,  8  Dana,  268. 
Cook  ('.  Farrington,  104  Mass.  212.  ■?  Ingraham  v.  Martin,  3  Sbep.  373. 

3  Fuller  V.  Acker,  1  Hill,  473.  8  Partridge  v.  Swasey,  46  Maine,  414. 


CH.  VI.]  PARTIES   IN   REPLEVIN.  69 

§  35.  In  an  action  of  replevin,  brought  by  the  assignee  of  an 
insolvent  debtor ;  the  defendant,  who  claims  under  a  mortgage 
from  the  debtor,  by  which  the  possession  and  control  of  the  goods 
are  secured  to  the  mortgagor  until  after  default,  may  show,  by 
parol  evidence,  that  the  mortgagor  has  waived  this  right,  and 
allowed  him  to  take  possession.^ 

§  35  a.  Upon  a  petition  in  insolvency  against  the  mortgagee 
of  personal  property,  the  officer  took  possession  under  a  void 
warrant.  The  condition  being  afterwards  broken,  he  took  pos- 
session under  a  valid  warrant,  and  delivered  the  property  to  the 
assignees.  The  mortgagor  brings  replevin  against  the  officer 
and  the  assignees.  Held,  it  could  not  be  maintained  against  the 
former,  because  he  was  not  in  possession  ;  nor  against  the  latter, 
because  they  held  under  the  assignment.^ 

§  36.  The  service  of  legal  process  upon  mortgaged  property 
has  often  given  occasion  to  the  action  of  replevin  in  behalf  of  the 
mortgagee. 

§  37.  In  Massachusetts,  independently  of  statute,  the  pro- 
visions of  which  must  be  strictly  observed,  personal  property 
mortgaged  cannot  be  taken  on  execution  against  the  mortgagor  ; 
and  replevin  will  lie  by  the  mortgagee  against  a  purchaser  of  the 
property  at  the  sale  on  execution.^ 

§  38.  A,  the  owner  of  a  vessel,  resident  in  Nova  Scotia,  mort- 
gaged her  to  B,  also  resident  there,  who  had  his  mortgage  duly 
recorded,  under  the  laws  of  the  province,  at  the  custom-house, 
and  a  memorandum  thereof  indorsed  on  the  register  of  the  ves- 
sel; these  acts,  by  the  lex  loci,  making  B  the  owner  of  the  vessel, 
so  far  as  was  necessary  to  give  him  security  for  his  debt.  Held, 
he  had  thus  acquired  possession  of  the  vessel,  sufficiently  to 
maintain  replevin  against  an  attaching  creditor  in  Massachusetts.* 

§  39.  Where  an  officer  levies  upon  personal  property  mort- 
gaged, which  remains  in  possession  of  the  mortgagor,  the  money 
not  having  become  due,  and  replevin  is  brought  against  him  for 
asserting  his  claim  under  such  levy,  and  refusing  to  surrender 
the  property  after  the  mortgage-money  has  become  due  ;  the 
plaintiff  must  declare  for  the  detention,  not  for  the  taking  of  the 
property.^ 

1  Whitcher  v.  Shattuck,  3  Allen,  319.  *  Esson  v.  Tr.rbell,  9  Cusli.  407. 

2  Hall  V.  White,  106  Mass.  599.  6  Randall  v.  Cook,  17  Wend.  53. 

3  Lamb  i'.  Johnson,  10  Cush.  126. 


70  REPLEVIN.  [book   I. 

§  40.  The  Kentucky  statute,  subjecting  the  interests  of  mort- 
gagors to  execution,  makes  no  reference  to  the  state  of  the 
possession  at  the  time  of  levy ;  and,  as  a  levy  on  personal  prop- 
erty implies  that  the  officer  takes  possession  of  it,  so,  where  an 
execution  against  the  mortgagor  is  levied  on  the  mortgaged 
property  in  possession  of  the  mortgagee,  the  officer  has  a  legal 
right  to  assume  the  possession  and  control  of  the  property  be- 
tween tlie  levy  and  sale,  and  the  mortgagee  cannot  maintain 
replevin ;  and  a  failure  of  the  officer  to  recognize  the  mortgage 
(because  he  did  not  know  of  it,  or  doubted  its  validity),  it  seems, 
would  not  render  the  levy  and  seizure  unlawful.  If,  in  any  case, 
where  an  execution  against  a  mortgagor  is  levied  on  the  prop- 
erty, it  can  be  replevied  by  the  mortgagee,  it  must  be  surren- 
dered for  the  sale  of  the  mortgagor's  interest. ^ 

§  41.  In  replevin  in  the  detinet,  the  finding  was,  that  the  plain- 
tiff was  a  mortgagee  and  in  possession  ;  that  the  defendant  as 
constable  took  and  detained  the  chattel  on  an  execution  against 
the  mortgagor ;  and  that  by  law  a  mortgagee  of  a  chattel  in 
possession  might  maintain  replevin  in  the  detinet  against  a  con- 
stable, who  took  and  detained  the  mortgaged  chattel  for  the  mort- 
gagor's debts.  Held,  the  finding  did  not,  even  by  necessary 
implication,  show  a  right  of  possession  in  the  plaintiff.^  The 
finding  further  ordered  an  allowance  of  five  per  cent,  on  the 
value  recovered  by  the  plaintiff  as  indemnity  for  his  expenses, 
and  fixed  the  value  at  $105.  Held,  fatally  defective,  in  that  it 
did  not  assess  damages  for  the  taking ;  and  that  the  judgment 
thereon  could  not  stand. '^ 

§  42.  A  mortgagee  of  personalty,  having  the  right  to  take 
possession  whenever  he  deems  the  debt  insecure,  has  an  imme- 
diate right  of  possession,  and  may  maintain  replevin  where  the 
whole  property  has  been  sold  on  execution,  instead  of  the  mort- 
gagor's interest.* 

§  43.  Replevin  will  not  lie  for  levying  an  execution  against  a 
mortgagor  and  mortgagee  upon  the  mortgaged  chattels  by  direc- 
tion of  the  mortgagee.^ 

§  44.  In  Ohio,  personal  property  mortgaged  may  be  attached 
as  the  mortgagor's,  when  in  his  possession.     The  levy  and  seiz- 

1  M'Isaacs  v,  Hobbs,  8  Dana,  268.  *  Frisbee  v.  Langworthy,  11  "Wis.  375. 

'•i  Bates  V.  Wilbur,  10  Wis.  415.  ^  Talbot  v.  De  Forest,  3  Iowa,  586. 

3  lb. 


CH.  VI.]  PARTIES    IN    REPLEVIN.  71 

ure  creates  a  lien,  which  is  not  divested  by  the  recovery  of  the 
property  in  replevin  by  the  mortgagee.  The  attaching  creditor 
may  apply  the  surplus  proceeds  of  a  sale  made  by  the  mortgagee 
to  his  judgment,  though,  after  levy  of  the  attachment,  and  before 
commencement  of  proceedings  tlius  to  subject  the  surplus,  the 
mortgagor  had  assigned  it  to  the  mortgagee.^ 

§  45.  In  the  same  State,  if  the  lien  of  a  mortgage  exceeds  the 
value  of  the  property,  the  officer,  against  whom  an  action  of  re- 
plevin is  brought  for  taking  it  upon  process  against  the  mort- 
gagor, can  recover  only  nominal  damages.^ 

§  46.  To  an  action  of  replevin  for  detaining  goods,  the  defend- 
ant may  plead  generally  property  in  himself,  and  specially  that 
the  goods  were  delivered  by  the  plaintiff  to  the  defendant  as  a 
pledg-e,  and  retained  until  the  plaintiff  should  pay,  &c.,  which  he 
had  not  done.*^  So  A  pledged  goods  to  B,  to  secure  his  debt.  A 
was  indebted  to  C  by  note.  By  agreement  between  the  three,  A 
was  to  work  for  C,  who  was  to  apply  his  wages  to  the  payment  of 
B's  debt.  A  Avorked  for  C  until  his  wages  exceeded  the  amount 
of  his  indebtedness  to  B.  C  then  offered  A  his  own  note,  and 
the  balance  of  B's  debt  to  A  in  cash,  which  A  refused.  C  then 
paid  A  the  amount  of  his  wages  in  cash.  Held,  no  satisfaction 
of  the  debt  secured  by  the  pledge,  and  therefore  A  could  not 
maintain  replevin  for  the  goods,  especially  after  receiving  the 
full  amount  of  his  wages  from  C.^ 

§  47.  In  replevin,  under  the  Revised  Statutes  of  Michigan, 
one  having  a  lien  or  a  special  property,  at  the  commencement  of 
the  suit,  can  recover  only  according  to  his  special  interest  against 
the  general  owner ;  but  against  a  stranger  he  may  recover  as 
though  he  were  the  general  owner,  the  statute  being  intended 
to  introduce  in  actions  of  replevin  the  rules  governing  in  actions 
of  trover.^ 

§  48.  It  seems,  the  defendant  in  replevin  cannot  object  that  a 
third  person  had  a  lien,  as  against  the  plaintiff,  upon  the  property 
ttached.^ 

§  49.  Where  the  defendant,  in  replevin  for  manufactured  arti- 
cles, avows  the  detention  of  them  on  the  ground  of  a  mechanic's 

1  Carty  v.  Fenstemaker,  14  Ohio  St.,  *  lb. 

457.  6  Davidson  v.  Gunsoily,  1  Mann.  388. 

'■i  Coe  V.  Peacock,  14  Oliio  St..  187.  ^  Wilson  v.  Nichols,  2y  Maine,  566. 
'  Amos  V.  Sinuott,  4  Scam.  440. 


72  REPLEVIN.  [book   I. 

lien ;  the  plaintiff  may  plead  in  bar  an  agreement  by  which  the 
lien  was  waived.^ 

§  50.  Where  a  purchaser  of  horses,  at  a  sale  on  execution, 
which  were  subject  to  a  lien  for  keeping  at  a  livery-stable,  suf- 
fered them  to  come  again  into  the  custody  of  the  stable-keeper, 
and  afterwards  took  them  away  against  the  will  of  the  latter, 
who  claimed  to  detain  them  for  his  lien  ;  it  was  held  that  replevin 
was  the  proper  form  of  action  for  the  stable-keeper  in  enforcing 
his  lien.2 

§  51.  "Where  the  defendant  sets  up  a  lien  for  storage,  the 
plaintiff  may  prove,  that,  through  his  negligence,  goods  had  been 
destroyed  exceeding  in  value  the  claim  for  storage.'^ 

1  Curtis  V.  Jones,  3  Denio,  590.  3  Babb  v.  Talcott,  47  Mis.  343. 

2  Young  V.  Kimball,  23  Penn.  193. 


CH.  yii.] 


WRIT,   BOND,    DECLARATION,    ETC. 


78 


CHAPTER   VII. 


WRIT,    BOND,   DECLARATION,   PLEADINGS,   EVIDENCE,    ETC. 


1.  (and  note).  General  remarks  as  to 
pleadinj^s  and  practice,  and  the  statutorj' 
changes  on  tliese  sulijects;  points  of  practice. 

2.  I)escri])tion  of  the  property. 
6.  Statement  of  title. 

9.  Motions,  pleadiiigs,  &c.,  subsequent  to 
the  writ  and  declaration  —  motion  to  dis- 
miss. 

16.  Pleadings  —  avown/  and  cof/nizance. 

17.  General  issue  ;  7ion  cepit  and  detinet. 

18.  Title  to  the  property. 


26.  Several  pleas. 

27.  Pleading  in  case   of  seizure  by  legal 
process,  distress,  Ike. 

36.  Replication,  &c. 

51.  Amendment. 

52.  Evidence. 
71.  Verdict. 
75.  Damagi'S. 

77.  Verdict  and  judgment  in  special  cases. 

84.  Judgment  for  return. 


§  1.  With  regard  to  the  pleadings,  practice,  and  forms  of  pro- 
ceeding in  replevin,  we  have  already  seen  that  they  are  for  the 
most  part  peculiar  to  this  action.^  In  consequence  of  such 
peculiarity,  the  numerous  statutory  alterations  in  this  country, 
with  reference  to  mere  matters  of  form,  the  purpose  and  effect  of 
which  is  to  simplify  remedies  and  do  away  with  long-established 
technicalities,  have  comparatively  little  application  to  the  action 
of  replevin,  (a) 

1  See  Wadley  v.  Harris,  25  Ark.  36. 


(a)  There  are,  however,  numerous 
points  of  form  and  practice  in  the  action 
of  replevin,  which  are  variously  regu- 
lated by  the  local  usages  and  express 
legislation  of  different  States.  Questions 
may  frequently  arise,  in  reference  to  the 
bo»(l,  which  is  generally  required  to  ac- 
company the  writ  of  replevin.  (See  ch.  8) 
In  Connecticut,  if  the  plaintiff  in  an  action 
of  replevin  be  not  an  inhabitant,  he  must 
give  bond  for  prosecution  pursuant  to  the 
first  section  of  the  act  regidating  civil 
actions ;  otherwise  the  process  is  abata- 
ble. And  this,  notwithstanding  the  giv- 
ing of  a  bond,  pursuant  to  tiie  8th  section 
of  the  statute  authorizing  writs  of  re- 
plevin, such  bond  not  securing  to  the 
defendant  his  costs  in  replevin.  Fleet  v. 
Lockwood,  17  Conn.  233. 

In  Maine,  the  plaintiff  in  replevin  is 
not  a  trespasser  in  taking  the  goods  re- 
plevied, if  he  offers  sureties  satisfactory 


to  the  oflBcer,  although  in  fact  insufficient. 
Harrinian  t\  Wilkins,  2  App.  93. 

In  Kentucky,  though  no  bond  may 
have  been  executed  on  suing  out  a  writ 
of  replevin,  yet,  if  the  writ  be  not  exe- 
cuted, and  the  property  not  delivered  to 
the  plaintiff,  it  is  error  to  quash  the  writ 
and  render  judgment  for  a  return  of  the 
property.  Tlie  writ  is  good  as  a  citation, 
and  the  cause  should  progress.  Green- 
wade  r.  Fisher,  5  B.  Mon.  167. 

Under  a  statute  requiring  "  all  original 
writs  "  to  be  iudorsxl,  a  writ  of  replevin 
must  be  indorsed.  The  fact  that  the  re- 
])k'vin  bond  furnishes  all  the  security 
derived  from  such  indorsement  cannot 
change  the  effect  of  an  express  statute. 
Nor  does  it  make  any  difference  tliat  this 
statute  is  prior  in  time  to  the  act  jtrovid- 
ing  for  replevin.  But  if  the  defendant 
pleads  the  want  of  an  indorser  in  abate- 
ment of  the  writ,  without  any  suggestion 


74 


REPLEVIN. 


[book  I. 


§  1  a.  Replevin  is  a  summons,  not  an  attachment,  and  must  be 
served  accordingly.^ 

1  Giiffield  V.  Avery,  43  Verm.  668.     Contra,  Baldwin  v.  Cash,  7  W.  &  S.  425. 


entitling!:  him  to  possession  of  the  goods, 
and  the  writ  is  abated ;  lie  shall  have 
judgment  tor  his  costs,  but  not  for  a  re- 
turn. Gould  i\  Barnard,  3  Mass.  199.  In 
Massachusetts,  it  is  not  necessary  that  it 
should  aj)])ear,  in  an  officer's  return  of  a 
writ  of  re])levin,  either  that  the  defendant 
was  requested  or  had  notice  to  appoint  an 
appraise?-  of  the  property,  or  that  the  par- 
ties did  not  agree  as  to  the  value  thereof 
Wolcott  V.  Mead,  12  Met.  516.  Though 
it  is  the  general  duty  of  the  officer  to  ap- 
point three  appraisers,  yet  he  is  justified 
or  excused  for  omitting  so  to  do,  when 
the  parties  agree  as  to  the  value.  If  the 
parties  do  so  agree,  he  should  certify  that 
fact  in  his  return,  when  he  for  that  reason 
omits  to  appoint  appraisers.  lb.  In 
Massachusetts,  a  writ  of  replevin  may  be 
issued  by  the  clerk  of  the  courts  in  one 
county,  returnable  in  another.  Judson  v. 
Adams,  8  Cush.  556.  A  constable  has  no 
authority,  by  Rev.  Sts.,  c.  15,  to  serve  a 
writ  of  replevin,  except  where  the  sheriff 
or  his  deputy  is  a  party,  and  the  value  of 
the  property  does  not  exceed  seventy 
dollars.  The  statute  provided,  that  con- 
stables might  serve  writs  and  executions 
in  any  personal  action  in  which  the  dam- 
age is  not  laid  higher  than  seventy  dol- 
lars. By  a  subsequent  section  of  the 
same  chapter,  "  constables  may  also  serve 
writs  of  replevin,  in  cases  where  the 
sheriff  or  his  deputy  shall  be  a  party, 
and  in  which  the  value  of  the  property 
to  be  replevied  shall  not  exceed  the  sum 
of  seventy  dollars."  The  construction  of 
the  two  provisions,  taken  together,  is  as 
above  stated.  "  And  this  conclusion  is 
confirmed  by  a  reference  to  the  subject- 
matter.  In  most  personal  actions,  the 
matter  ultimately  claimed  in  the  suit  is  a 
sum  of  money  expressed  in  the  ad  dam- 
num. The  obvious  purpose  of  the  statute 
being  to  give  constables  a  limited  au- 
thority only  to  serve  writs  .  .  .  this  may 
be  well  measured  in  most  personal  actions 
by  the  ad  damnum.  But  it  is  otherwise 
in  replevin,  where  specific  property,  often 
of  great  value,  may  be  the  subject  of  judi- 
cial controversy,  whilst  the  damages  are 
merely  incidental,  and  may  be  compara- 
tively small."  Conner  v.  Palmer,  13  Met. 
302  ;  per  Shaw,  C.  J.,  ib.  303.  Under  the 
Rev.  Sts.,  c.  113  (see  Gen.  Sts),  a  writ  of 
replevin  may  delivered  to  an  officer,  and 
lie  may  commence  the  service,  but  not  de- 
liver the  property  to  the  plaintiff,  nor  do 


any  thing  more  than  is  necessary  to  effect 
an  apju'aisement,  before  taking  a  liond. 
Wolcott  V.  Mead,  12  Met.  616. 

In  New  York,  a  plaintiff'  in  replevin 
cannot  regularly  declare,  until  the  writ  be 
returned  with  the  names  of  the  sureties 
annexed.  Wilson  v.  Williams,  18  Wend. 
581.  A  writ  tested  at  one  term,  and  re- 
turnable at  the  next  term  but  one  (an 
entire  term  intervening),  is  voidable. 
Cayward  v.  Doolittle,  6  Cow.  602. 

In  Wisconsin,  an  alias  writ  of  replevin 
maj'  be  issued  and  directed  to  the  sheriff 
of  a  county  other  than  that  in  which  suit 
is  brought.  Hiles  v.  McFarlane,  4  Chand. 
189. 

In  Vermont,  a  writ  of  replevin  of  prop- 
erty attached  cannot  be  served  by  a  con- 
stable. Ralston  v.  Strong,  Brayt.  216  ; 
ib.  1  Chip.  287. 

In  Connecticut,  a  writ  to  replevy  goods 
taken  by  attachment  is  not  an  adversary 
suit,  but  a  mandatory  precept,  and  ought 
to  be  directed  to  the  officer  who  served 
the  attachment.  Denison  v.  Raymond, 
Kirby,  274. 

In  Iowa,  a  petition  in  replevin  before  a 
justice  of  the  peace  must  be  sworn  to. 
Cure  V.  Wilson.  25  Iowa,  205. 

In  New  York,  proceedings  in  the  nat- 
ure of  replevin,  to  obtain  immediate  de- 
livery of  personal  -property,  in  which  the 
plaintiff's  affidavit  states  that  the  property 
has  not  been  taken  for  a  tax,  should  be  set 
aside  on  a  motion  founded  on  the  affidavits 
of  a  collector  and  deputy  collector  of 
taxes,  stating  that  such  property  was 
taken  for  a  tax  under  an  act  of  Con- 
gress ;  the  deputy  annexing  to  his  affi- 
davit the  warrant  under  which  he  seized 
the  property.  O'Reilly  v.  Good,  42  Barb. 
521. 

In  Arkansas,  if  a  writ  of  replevin  is 
improperly  executed,  the  clerk  can  issue 
an  alias  without  any  order  of  court.  The 
return  must  show  execution  by  reading, 
or  delivering  a  copy,  or  leaving  a  copy 
at  the  defendant's  usual  place  of  abode, 
with  some  white  person  of  his  family 
over  fifteen  years  of  age.  It  must  also 
set  forth  with  certainty  the  contents  of 
the  notice  required  to  be  delivered  to,  or 
left  for  him,  and  state  that  it  was  signed 
by  himself  A  defect  in  the  return  is  not 
ground  for  dismissing  the  suit.  Nor  is  a 
refusal  of  the  plaintiff  to  amend.  Pool  v. 
Loomis,  5  Pike,  110. 

In  Illinois,  where  part  of  the  property 


CH.   VIT.] 


WRIT,   BOND,   DECLARATION,    ETC. 


75 


§  1  Z>,  The  officer  may  enter  the  defendant's  house  to  search 
for  the  goods. ^  By  St.  Westm.  1,  c.  17,  where  one  had  taken 
beasts  and  driven  them  into  a  castle  or  fortress  to  prevent  a  re- 
plevin ;  the  sheriff,  after  solemn  demand  and  refusal,  might 
break  the  castle  or  fortress  to  make  replevin.  And  it  is  held, 
that,  at  common  law,  the  privilege  of  one's  house  extends  only 
to  him  and  his  family  and  to  his  own  goods. ^ 

§  2.  The  writ  and  declaration  must  contain  a  description  of  all 
the  goods,  ^  (a)  which  will  enable  the  officer,  with  reasonable 
certainty,  to  distinguish  them  from  other  property  of  like 
nature.  In  replevin  for  six  oxen,  the  writ  and  declaration  may 
describe  them  merely  as  **  six  oxen."  ^  Or  "  one  white  shoat  of 
the  value  of  fifteen  dollars."^  But  "  a  quantity  of  corn  (consist- 
ing of  about  200  bushels),  and  a  quantity  of  rye  (consisting  of 
about  100  bushels),"  is  not  a  sufficient  description."    So,  although 

1  Kneas  v.  Fitler,  2  S.  &  R.  263.  Pope  v.  Tillman,  1  Moo.  386.     See  Story 

2  Semayne's  Case,  6  Co.  01  a.     But    v.  O'Dea,  23  Iiul.  326. 

see  2  Inst.  193.  *  Farwell  v.  Fox,  18  Mich.  166. 

3  Magee  v.   Siggerson,  4  Blackf.  70;  ^  Oustatt  v.  Keani,  30  Ind.  259. 

*»  Stevens  v.  Osman,  1  Mann.  92. 

claimed  cannot  he  found,  and  there  is 
personal  service,  the  plaintiff  may  add  a 
count  in  trover.  Dart  v.  Horn,  20  111. 
212. 

The  failure  of  a  sheriflT  to  return  the 
value  of  property  replevied,  as  required 
by  the  third  section  of  the  Kentucky  Act 
of  1830,  is  no  cause  for  quashing  the  writ. 
Fryer  ;;.  Fryer,  6  Dana,  54. 

In  Maine,  a  writ  of  replevin  return- 
able before  a  justice  of  the  peace,  like 
other  justice  writs,  is  to  be  "  duly  served, 
not  le.<s  than  seven,  nor  more  than  si.xty 
days  before  the  day  therein  appointed  for 
trial."     Lord  v.  Poor,  10  Shep.  569. 

In  Indiana,  a  writ  of  replevin  need  not 
show  that  the  statutory  affidavit  has  been 
made  by  the  plaintiff.  Maiiee  v.  Siixger- 
son,  4  Blackf.  70.  No  separate  afHdavit 
is  necessary,  if  the  complaint  recites  the 
material  facts  and  is  sworn  to.  Minchrod 
V.  Windoes,  29  Ind.  288.  If,  in  an  action 
before  a  justice  of  the  peace,  the  affidavit 
filed  be  such  as  the  statute  recjuires,  no 
other  statement  of  the  demand  is  neces- 
sary.   Andre  i'.  Johnson,  6  Blackf  188. 

In  Micliigan,  an  affidavit  is  essential 
before  a  writ  of  replevin  can  be  served, 
and  must  siiow  a  wrongful  detention. 
Wilbur  V.  Flood,  16  Mich.  40.  The  affi- 
davit, required  in  actions  of  replevin  to 
be  annexed  to  the  writ  before  it  can  be 
executed,  must  contain  tlie  statement 
"  that    the   property  was    not  taken    for 


any  assessment  levied  by  virtue  of  any 
law  in  this  State;  "  also,  that  it  was  not 
seized  under  any  execution  against  the 
goods  and  chattels  of  the  plaintiff  liable 
to  execution.  These  averments  are  made 
necessary  by  the  statute,  without  regard 
to  the  nature  of  the  property  replevied. 
Plienix  V.  Clark,  2  Mich.  327. 

As  to  an  allegation  of  demand,  see 
Campbell  v.  Jones,  38  Cal.  507  ;  Simser 
V.  Cowan,  56  Barb.  395.  Where  a  de- 
mand is  ])roved  and  found  by  a  referee ; 
tlie  complaint  is  good,  after  judgment,  if 
it  state  facts  which  show  an  unlawful 
holding,  although  no  demand  is  alleged. 
Fullerton  v.  Dalton,  58  Barb.  236.  Al- 
though, in  case  of  unlawful  detention, 
no  allegation  of  demand  is  necessary ; 
the  com])laint  must  allege  oirneisltip  of 
the  plaimitf,  not  merely  detention  from 
him.  Schofield  i:  Whitelegge,  10  Abb. 
Pr.  (N.  S.)  104. 

(d)  As  to  the  allegation  of  vnlue,  see 
p.  77;  Iloskins  v.  l^)bbins,  2  Saun.  320. 

The  objection  that  a  complaint  does 
not  allege  the  value  of  the  projierty  is 
cureil  by  a  verdict  assessing  damages  to 
the  plaintiff  for  detention.  Bales  v.  Scott, 
26  Ind.  202. 

An  allegation  of  value  is  a  matter  of 
form,  and  not  an  admission  bj'  the  plain- 
tifl'  in  an  iiujuirv  by  the  jury.  Bailey  v. 
Ellis,  21  Ark.  488. 


76  REPLEVIN.  [book   I. 

"  fifteen  hundred  pounds  of  seed  cotton  "  is  sufficiently  descrip- 
tive of  the  article  and  of  the  quantity  ;  as  the  officer  was  re- 
quired to  take  it  into  his  possession,  it  was  doubted  whether 
some  further  identification  of  the  particular  cotton  sought  to  be 
recovered  should  not  have  been  made,  as,  that  it  was  at  a  cer- 
tain place,  in  a  pen,  house,  or  pile.^  (a) 

§  3.  It  is  held  that  a  defective  description  must  be  taken  ad- 
vantage of  by  special  demurrer,  as  it  will  be  sufficient  after  ver- 
dict, avowry,  or  plea  of  property .^  But,  unless  the  writ  specify 
the  goods,  it  may  be  quashed,  even  after  an  appearance.^ 

§  4.  The  declaration  should  not  include  any  property  not  taken 
under  the  writ.^ 

§  5.  On  a  writ  of  replevin  for  about  four  hundred  tons  of  bog 
ore,  the  sheriff"  is  not  authorized  to  deliver  to  the  plaintiff"  seven 
hundred  and  twenty  tons.  It  seems,  he  would  have  been  justifia- 
ble in  refusing  to  execute  such  a  writ.  Where,  however,  he  did 
execute  it,  and  delivered  to  the  plaintiff"  seven  hundred  and 
twenty  tons  of  ore,  and  the  defendants  obtained  a  judgment  of 
return,  and  executed  a  writ  of  inquiry  to  assess  the  value  of  the 
property  and  damages  of  detention  ;  held,  it  was  competent  for 
the  plaintiff  to  show,  in  mitigation,  that  shortly  after  the  delivery 
of  the  property  to  him  the  defendants  repossessed  themselves  of 
the  greater  part  thereof.^ 

§  5  a.  In  a  case  of  replevin  for  a  certain  number  of  barrels  of 
mackerel,  the  writ  was  served,  with  the  assent  of  the  defendant, 
by  taking,  in  part,  two  half  barrels  as  equivalent  to  one  barrel. 
Held,  he  could  not  claim  a  return,  on  the  ground  that  property 
was  taken  which  was  not  described  in  the  writ.''  (6) 

1  Hill  V.  Eobinson,  16  Ark.  90.  *  Sanderson  v.  Marks,  1  Har.  &  Gill, 

2  Stevens  v.  Osman,  1  Mann.  92.  252. 

3  Snedeker  v.  Quick,  6  Halst.  179.  ^  De  Witt  v.  Morris,  13  Wend.  496. 

6  Gardner  v.  Lane,  9  Allen,  492. 

(a)  It  is  said,  "if  the  goods  were  a  description  of  it  as  "a  certain  store- 
taken  in  a  dwelling-house  in  the  city,  house,  warehouse,  and  the  goods  therein 
(the  plaintiff)  should  state  the  street  and  contained,  being  the  store  in  C.B.,  known 
number  of  the  house  ;  if  in  a  store  or  and  designated  as  the  store  of  your  peti- 
factory,  it  should  be  so  stated,  and  the  tioner,"  is  sufficient.  Ellsworth  v.  Hen- 
locality  given  ;  if  on  a  farm,  that  state-  shall,  4  Greene  (Iowa),  417. 
ment  should  be  accompanied  by  some  (b)  In  New  York,  a  summons  in  re- 
words of  description  by  which  the  place  plevin  need  not  specify  the  property ; 
may  be  readily  identified ;  such  as  the  road  and  such  specification  may  be  rejected  as 
upon  which  it  is  situate,  and  its  name,  if  surplusage.  Finehoutu.  Grain,  4  Hill,  537. 
it  has  one."  Morr.  Repl.  115 ;  Potten  i'.  Where,  in  replevin,  several  articles  of 
Bradley,  2  M.  &  P.  78.  In  replevin  property  were  described  in  the  writ,  but, 
against  a  sheriff,   for  attached  property,  in  consequence  of  directions  given  by  the 


CH.    VII.] 


WRIT,   BOND,    DECLARATION,    ETC. 


77 


§  6.  A  declaration  in  replevin  for  taking  and  detaining  goods 
must  sliow  either  a  general  or  special  property.  An  allegation 
of  title  to  the  possession  is  not  sufficient. ^  Nor  a  statement  of 
the  evidence  of  title  instead  of  title  itself,  ^  by  direct  and  issuable 
averment.^  Nor  that  the  goods  were  taken  by  the  defendant  out 
of  the  plaintiff's  possession.*  Nor  (in  New  York)  that  the  plain- 
tiff is  entitled  to  the  possession  of  the  goods,  and  they  are  the 
property  of  him,  the  plaintiff,  by  virtue  of  attachments  duly 
issued,  by  a  justice  of  the  peace,  and  delivered  to  the  j)Iaintiff, 
as  a  constable,  to  be  executed.^  So  a  declaration  in  replevin  by 
husband  and  wife  should  show  especially  the  wife's  interest  in 
the  goods.^  But  where  a  declaration  alleges  that  the  "  plaintiffs 
were  the  owners  "  of  the  goods  in  suit,  "  and  entitled  to  the  pos- 
session thereof;  "  the  last  clause  may  be  disregarded  as  surplus- 


1  Pattison  v.  Adams,  7  Hill,  126.  See 
Prosser  v.  Woodward,  '21  Wend.  205. 

2  Bond  V.  Mitclicll,  3  Barb.  304.  See 
Stoker  v.  Crane,  40  Mis.  2G4. 

^  Vandenburgh  v.  Van  Valkenburgh, 
8  Barb.  217. 

plaintiff,  a  ])art  of  tlicni  onh'  was  seized 
by  the  officer  ;  held,  the  plaintiff  might 
nevertheless  include  the  whole  in  his  dec- 
laration, and  this  though  the  summons 
served  described  the  articles  seized  with- 
out mentioning  the  residue.  Pinehout  v. 
Grain,  4  Hill,  537.  It  seems,  a  sheriff  is 
not  liable  in  trespass  for  replevying  the 
property  mentioned  in  the  writ,  though  it 
belong  to  a  third  i)erson,  and  be  found  in 
his  possession.  Otherwise  with  the  party 
who  sued  out  the  writ.  Shipman  v.  Clark, 
4  Denio,  440. 

In  Indiana  and  Alabama,  in  replevin 
in  the  ilctinnit,  which  is  now  the  usual 
form,  the  declaration  need  not  state  the 
value  of  the  goods.  ( See  p.  75. )  Britton  v. 
Morss,  0  Blackf.  469 ;  Haynes  v.  Crutch- 
field,  7  Ala.  189.  See  Wilcoxon  v.  Annes- 
ley,  23  Ind.  285.  In  Indiana,  if,  in  an 
action  of  replevin  before  a  justice  of  the 
peace,  the  statement  of  demand  filed  be- 
fore the  writ  issued  state  the  value  of  the 
property,  the  omission  of  the  averment 
of  such  value  in  the  affidavit  is  not  mate- 
rial.    Mooney  v.  Myers,  5  Blackf.  331. 

In  New  York,  wliere  the  complaint  al- 
leges the  value  of  the  chattel  as  "  about 
one  hundred  and  thirty  dollars,"  which 
allegation  is  not  controverted  l)y  the  an- 
swer, the  defendant  may  show  the  true 
value.     Woodruff  v.  Cook,  25  Barb.  505. 

In  Massachusetts,  in  a  writ  of  replevin 
directed  to  a  deputy  sheriff,  it  is  not  nec- 
essary to  state  the  value  of  the  goods. 


*  Bond  V.  Mitchell,  8  Barb.  304. 
^  Vandenburgh  v.  Van  Valkenburgh, 
8  Barb.  217. 

6  Gentry  v.  Borgis,  6  Blackf.  261. 


This  conclusion  is  arrived  at  by  Mr.  Jus- 
tice Gray,  after  an  elaborate  citation  of 
the  early  Massachusetts  statutes,  and  the 
decisions  by  which  they  have  been  con- 
strued. Pomeroy  v.  Trimper,  8  Allen, 
399.     See  Davenport  v.  Burke,  9  ib.  116. 

"  In  a  case  in  the  Year  Books,  a  man 
brought  replevin  of  a  heifer  ( juvenca),  and 
was  afterwards  nonsuit,  and  sued  out  his 
writ  of  second  deliverance  of  a  cow 
(vaccn)  ;  to  which  the  defendant's  counsel 
objected  on  the  ground  of  variance  ;  but 
Fitzherbert,  J.,  said  :  "  The  writ  is  good  ; 
for  it  may  be  that  it  was  a  heifer  at  the 
time  of  suing  out  tlie  replevin,  and  that  it 
is  now  a  cow."  Year  Book,  26  Hen.  VIII. 
p.  6,  pi.  27  ;  cited  by  Gray,  J.,  in  Pom- 
eroy V.  Trimper,  8  Allen,  404. 

In  New  York,  the  declaration  must 
state  a  place  certain,  within  the  village  or 
town  ;  but  the  omission  may  be  cured  by 
the  defendant's  pleading  over.  Gardner 
I'.  Humphrey,  10  Johns.  53. 

In  Pennsylvania,  in  replevin  for  arti- 
cles not  distrained,  it  is  sufficient  if  the 
taking  be  laid  in  the  county.  Muck  v. 
Folkroad,  1  Browne,  60. 

In  Maryland,  an  omission  to  allege 
damage  in  the  declaration  is  fatal.  Paget 
1-.  Brayton,  2  liar.  &  J.  350.  AfUT  trial 
in  rei)levin  and  vt-rdict  for  the  defendant, 
the  ])laintiff'  cannot  avail  himself  of  any 
uncertainty  in  his  declaration.  Wilson  v. 
Gray,  8  Watts,  25. 


78  EEPLEVIN.  [book   I. 

age,  the  allegation  of  ownersbip  being  equivalent  to  an  assertion 
of  property.^ 

§  6  a.  In  Indiana,  a  complaint,  in  an  action  to  recover  possession 
of  personal  property  wrongfully  taken  or  unlawfully  detained, 
need  only  state  the  plaintiff's  right  to  possession,  its  description 
and  value,  and  that  it  was  wrongfully  taken  or  unlawfully  de- 
tained. He  need  not  demand  immediate  possession,  but  may 
leave  the  possession  to  be  determined  by  the  final  judgment ; 
and,  in  that  case,  that  bond  and  affidavit  required  for  an  immediate 
delivery  need  not  be  filed.^  (a) 

§  7.  Where  two  issues  are  presented  by  a  declaration,  one 
claiming  property',  and  the  other  that  the  defendant  detained  the 
goods,  a  general  verdict  in  favor  of  the  plaintiff  will  be  set 
aside.^ 

§  8.  On  a  bill  in  equity,  under  Mass.  Rev.  Sts.  c.  81,  §  7,  to 
obtain  possession  of  a  horse,  secreted  from  the  plaintiff  so  that  it 
cannot  be  replevied,  an  allegation  that  the  plaintiff  was  the 
owner  of  the  horse  and  had  the  right  of  possession  is  sufficient, 
without  setting  forth  the  particulars  of  his  title  ;  especially  when 
the  plaintiff  seeks  no  discovery  and  waives  an  answer  under 
oath.  The  court  make  a  distinction  between  this  case  and  that 
of  Clap  V.  Shepard,  23  Pick.  228,  2  Met.  127  ;  the  bill  in  that 
case  disclosing  the  fact,  that  the  note  sought  to  be  restored  to  the 
plaintiff  was  a  note  payable  to  a  third  person,  and  therefore  it 
being  proper  that  further  facts  should  be  stated,  which  would 
show  a  transfer  to  the  plaintiff.^ 

§  9.  With  regard  to  the  pleadings  in  replevin,  subsequent  to 
the  declaration,  there  is  no  action  in  which  what  are  termed 
dilatory  motions  and  pleas  are  of  more  frequent  occurrence.  (6) 

§  9  a.  Where  the  issues  are  non  detinet,  not  the  property  of 
the   plaintiff,  and  property  in  the  defendant,  and  a  partnership 

1  Pattison  v.  Adams,  Hill  &  Den.  426.  *  Strickland  v.  Fitzgerald,  7  Cusli.  530- 

•^  Catterlin  v.  Mitchell,  27  Ind.  298.  532. 

'  Donaldson  v.  Johnson,  2  Chand.  160. 

(o)  A  declaration  in  these  words,  "A  £  ,"  is   a    declaration  in    replevin. 

B,  by,  &c.,  sues  C  D,  for  that  the  defend-  Gay  v.  Matthews,  4  B.  &  S.  425. 
ant,  on  certain  land  in  the  occupation  of  (b)  Pending  trial  of  an  action  of  replerin 
the  plaintiff",  in  the  parish,  &c.,  called,  &c.,  in  a  United  States  Circuit  Court,  the  ques- 
took  the  goods  of  the  plaintiff  (that  is  to  tion  of  the  disposition  of  the  thing  re- 
say),  six  wheat  ricks,  &c.,  and  unjustly  plevied  will  be  heard  by  the  court,  on 
detained  the  same  against  sureties  and  motion  by  either  party  and  notice  to  the 
pledges,  until,  &c.,  whereby  the  plaintiff  other.  Dennistoun  v.  Draper,  5  Blatchf. 
has   sustained   damages,   and  he    claims  C.  C.  336. 


CH.    VII.]  WRIT,    BOND,   DECLARATION,    ETC.  79 

between  the  plaintiff  and  defendant  is  proved,  it  is  erroneous  to 
dismiss  the  cause,  on  motion  of  the  defendant,  for  want  of  juris, 
diction.^ 

§  9  6.  A  defendant,  in  replevin  before  a  justice  of  the  peace, 
was  defaulted,  and  appealed.  After  several  terms,  he  moved  to 
dismiss  for  want  of  jurisdiction.  Held,  so  far  as  the  motion  was 
founded  on  defects  on  the  appraisement  and  bond,  it  was  an 
objection  to  the  sufficiency  of  service,  and  should  have  been 
made,  at  the  latest,  in  the  Superior  Court  at  the  first  term.  And  if 
a  defendant  moves  to  dismiss  for  want  of  jurisdiction,  on  the  ground 
that  the  goods  have  not  been  appraised  at  over  twenty  dollars ; 
the  plaintiff  may  prove  that  the  actual  value  exceeded  that 
amount.- 

§  10.  In  Kentucky,  the  want  of  a  sufficient  bond  in  replevin 
may,  it  seems,  be  pleaded  in  abatement ;  it  is  no  cause  for  dis- 
missing the  suit  upon  motion.  The  court  should  permit  the 
plaintiff  to  give  a  sufficient  bond,  or  order  restitution  of  the 
property.'^ 

§  10  a.  But  in  Vermont  the  action  may  be  dismissed,  on  motion, 
for  want  of  a  bond.* 

§  11.  In  Illinois,  it  is  not  cause  for  dismissing  an  action  of 
replevin,  that  no  declaration  was  filed  at  the  first  term  ;  the 
cause  in  such  case  should  be  continued  at  the  plaintiff's  cost.^ 

§  11  a.  But  an  objection  to  the  sufficiency  of  a  plaint  must 
be  taken  by  a  motion  to  quash.*^ 

§  11  6.  In  Iowa,  it  is  too  late,  after  issue  joined,  to  object  that  a 
petition  did  not  set  out  or  contain  a  copy  of  a  chattel  mortgage 
under  which  the  plaintiff  claims.  The  point  should  be  raised  under 
Rev.  §  2876,  by  demurrer.  Though  it  might  be  otherwise, 
under  §  2964,  if  the  mortgage  were  considered  the  cause  of 
action.''' 

§  12.  In  Massachusetts,  a  motion  to  dismiss  an  action  of  re- 
plevin, on  the  ground  that  the  writ  was  served  by  a  constable, 
or  that  there  was  no  appraisal  of  the  goods,  must  be  made  at  the 
first  term.^ 

§  13.  In  the  same  State,  it  is  no  ground  of  dismissal,  that  the 
bond  has  one  surety  only,  or  is  otherwise  insufficient,  after  ver- 
dict; nor  unless  the  fact  is  distinctly  specified,  at  the  first  term, 

1  Belcher  v.  Van  Duzen,  37  III.  281.  »  Amos  v.  Sinnott,  4  Scam.  440. 

'^  ])aveiii)ort  r.  Burke,  'J  Allen,  116.  <>  Brown  i'.  Keller,  32  111.  151. 

*  Bloomer  v.  Craige,  6  Dana,  310.  ^  Smith  v.  McLean,  24  Iowa,  322. 

*  Bent  V.  Bent  43  Verm.  42.  8  Jaques  v.  Sanderson,  8  Gush.  271. 


80  REPLEVIN.  [book   I. 

as  a  cause  for  dismissal.  The  action  will  not  be  dismissed,  for 
that  cause,  upon  a  motion  which  merely  states,  as  a  reason  for 
dismissing  it,  that  the  officer  made  his  service,  or  commenced  his 
service,  before  any  bond  was  given,  as  the  law  requires.^ 

§  14.  In  Massachusetts,  where  a  writ  of  replevin  was  framed 
according  to  the  form  prescribed  by  the  repealed  statute  of  1789, 
c.  26,  and  the  officer  proceeded  in  the  service,  according  to  that 
statute,  taking  and  returning  a  bond  from  the  plaintiff  to  the 
defendant  with  one  surety  only,  and  in  a  certain  sum,  without 
causing  an  appraisement,  &c.,  as  directed  by  Rev.  Stats,  c.  113; 
held,  a  motion  to  dismiss  the  action  could  not  be  received  after 
the  return  term,  at  which  the  defendant  appeared,  and  the 
action  should  proceed  to  trial,  as  the  bond  taken  and  returned 
was  valid  by  the  common  law,  and  the  court  had  jurisdiction  of 
the  parties  and  of  the  subject-matter.^ 

§  15.  It  is  no  ground  for  dismissing  a  writ  of  replevin,  that  an 
animal  described  in  the  writ  as  a  heifer  is  termed  a  cow  in  the 
certificate  of  appraisement  ;  that  the  plaintiff  has  caused  the 
officer  intrusted  with  the  writ  to  bring  an  action  against  the  de- 
fendant and  another  officer,  for  taking  the  property  from  him 
before  its  delivery  to  the  plaintiff;  or  that  the  plaintiff,  as  execu- 
tor, has  brought  a  suit  against  the  defendant  and  the  latter  officer 
for  conversion  of  the  property,  unless  such  conversion  is  shown 
to  be  the  same  for  which  the  replevin  was  brought.^ 

§  16.  The  pleadings  in  replevin  are  termed  avowry  and  cog-ni- 
zance^  "  An  avowry  is  where  the  defendant,  in  an  action  of 
replevin,  avows  the  taking  of  the  distress  in  his  own  right,  or  in 
right  of  his  wife,  and  sets  forth  the  cause  of  it,  as  for  arrears  of 
rent,  damage  done,  or  the  like."^  Cognizance  is  "where  the 
defendant  (not  being  entitled  to  the  distress  or  goods)  acknowl- 
edges the  taking,  and  insists  that  such  taking  was  legal,  not 
because  he  himself  had  a  right  to  distrain  on  his  own  account, 
but  because  he  made  the  distress  by  the  command  of  another, 
who  had  a  right  to  distrain."  ^  (a)     On  the  same  subject,  it  is  fur- 

1  Wolcott  V.  Mead,  12  Met.  516 ;  Rich  *  See  Lecky  v.  M'Dermot,  5  S.  &  R. 
V.  Ryder,  105  Mass.  308  ;  Gen.  Sts.  c.  129,  331 ;  Thomson  v.  Cross,  16  S.  &  R.  350  ; 
§  79.  Bratton  v.  Mitchell,  5  Watts,  70. 

2  Simonds  v.  Parker,  1  Met.  508.  ^  Bouv.  Law  Diet. 

3  Pomeroy  v.  Trimper,  8  Allen,  398.  ^  ib. 

{a)  Under  §  65  of  the  (Cal.)  Practice  restitution  or  for  the  yalue,  contains  only 

Act,  a  pleading  by  the  defendant,  which  matters  of  confession  and  avoidance,  and 

admits   the    taking,   but    justifies    under  is  deemed  controverted  by  the  plaintiff, 

legal  process,  and  prays  judgment  for  a  Stringer  v.  Davis,  35  Cal.  25. 


CH.  VII.] 


PLEADINGS. 


81 


ther  remarked  as  follows  :  "  The  plaintiff  and  defendant  are  consid- 
ered as  actors,  the  defendant  in  respect  of  his  having  made  the 
distress  (being  a  claim  of  riglit,  and  the  avowry  in  the  nature  of 
a  declaration),  and  the  plaintiff  in  respect  of  his  action."  ^  "  An 
avowry  partakes  of  the  nature  of  a  declaration.  It  is  the  asser- 
tion of  a  claim  for  the  return  of  the  goods  replevied." '-^  "  There 
is  a  difference  between  a  justification  to  an  action  of  trespass, 
and  an  avowry  or  cognizance.  In  trespass,  it  is  sufHcient  for  the 
defendant  to  allege  in  his  plea  matter  to  excuse  the  trespass ;  but, 
in  replevin,  the  avowant,  or  person  making  cognizance,  is  in  the 
nature  of  a  plaintiff,  for  he  is  to  have  a  return ;  and,  therefore, 
the  avowry  or  cognizance,  which  is  in  the  nature  of  a  declaration, 
must  show  a  good  title  in  omnibus,  and  contain  sufficient  matter 
to  entitle  him  to  a  return."  ^ 

§  17.  "  By  the  common  law,  replevin  lies  only  for  the  wrongful 
taking  of  chattels,  and  the  general  issue  is  non  cepit,  (a)  which 
admits  that  the  property  ...  is  in  the  plaintiff,  and  denies 
only  the  taking.  Of  course,  property  in  the  defendant  cannot  be 
given  in  evidence,  under  this  issue."  ^  (6) 

1  SSteph.N.  P.  2482;  1  Saun.  347b,e.  Eaves  v.  King,  1   Har.  141;  Vickery  v. 

See  p.  2.  81ierl)urne,  2  App.  34 ;  Wilson   u.  Koys- 

-  Per  Strong,  J.,  Burr  v.  Hughes,  44  ton,  2  Pil<e,   315;    Trotter  v.  Taylor,  5 

Penn.  517.  Blackf.   431  ;    Gaiiislia    v.    Butterfieid,   2 

=•  Potter  V.  North,  1  Wms.  Saun.  347  b.  Scam.    227  ;    Harper   v.   Baker,   3    Mon. 

n.  3.     See    Bloomer   v.  Jubel,  8    Wend.  421 ;  P^ly  ?•.  Ehlie,  3  Comst.  508 ;  1  Mass. 

448;  Soiitliall  t:  (Jarncr,  2  Leigh,  372.  153  ;  Bowland  v.  Mann,  G  Ired.  38;  Car- 

*  Per  Metcalt;  J.,  Miller  v.  Sleeper,  4  roll  v.  Harris,  19  Ark.  237. 
Ciish.   370;  Bourk  t:   Kiggs,  38  111.320; 


(a)  In  Illinois,  there  is  no  general 
issue  in  replevin,  and  upon  a  jtlea  of  iwn 
rcjiit  a  verdict  of  not  guilty  is  responsive  to 
the  issue.  Dole  v.  Kennedy,  38  III.  282. 
In  replevin  for  the  unlawful  detainer 
of  goods,  not)  ccjiit  is  not  a  good  plea,  but 
])rcsents  an  immaterial  issue,  and  is  bad 
on  demurrer.  The  general  issue  in  such 
a  case  is  uon  ililimf.  Amos  r.  Sinnot,  4 
Scam.  440 ;  Walpole  v.  Smith,  4  Blackf. 
304. 

In  a  proceeding  under  the  (Mis.)  stat- 
ute for  the  claim  and  delivery  of  personal 
pr()i)erty,  tlio  plea  of  nun  rrpit  admits  the 
jjlaintift's  title,  but  it  is  incumbent  on 
iiim  to  prove  that  the  defendant  had  the 
goods  ;  but,  where  the  issue  raises  the 
question  of  title,  it  devolves  on  the  jjlaiii- 
titf  to  prove  that,  at  the  time  of  the  caji- 
tion,  he  had  the  general  or  special  property 
in  the  goods  taken,  and  the  right  of  im- 
mediate and  exclusive  possession.  (Jray 
1-.  Parker,  38  Mis.  IGO. 


(b)  It  was  early  held,  that  replevin  is 
not  within  the  Mass.  Statute  of  1783, 
c.  42,  §  7,  which  authorizes  defendants,  in 
all  civil  (tvtions  triable  before  a  justice  of 
the  peace,  with  certain  exceptions,  to  give 
a  sjjecial  justification  or  excuse  in  evi- 
dence under  the  general  issue;  but  the 
pleadings,  verdict,  and  judgment  must 
])ursuc  tlio  rules  of  the  conunon  law.  Mr. 
t'hief  .Justice  Parsons  remarks :  "  Ke])levin 
is  not  a  civil  action,  within  a  reasonable 
construction  of  this  section.  Cases  within 
the  section  must  be  those  where  a  verdict, 
finding  the  general  issue,  and  a  judgment 
on  the  verdict,  will  do  justice.  Xow,  in 
replevin,  if  the  defendant  has  a  legal  justi- 
fication or  excuse  for  taking  the  chattels, 
his  defence  is  directly  re])Ugnant  to  a  de- 
nial of  the  taking,  for  he  admits  the  cap- 
tion complained  of,  and  claims  a  return, 
with  his  damages.  But,  on  the  plea  of 
non  cr/til,  he  cannot  have  a  return,  nor 
damages,  if  the  issue  joined  on  tliat  plea 


82 


REPLEVIN. 


[book  I. 


§  18.  The  most  frequent  defence,  in  replevin,  is  a  denial  of 
the  plaintifi's  ownership  of  the  goods  replevied.  This  is  often 
accompanied  with  a  claim  of  title  in  the  defendant  himself,  which 
may  be  sustained  by  any  legal  title  ;  ^  (a)  as,  for  example,  under  a 
pledge?  (h)     But,  if  the   declaration  allege  title  in  the  plaintiff, 

1  O'Connor  v.  Union,  &c.,  31  111.  230.  -'  Hildeburn  v.  Nathans,  1  Phila.  567. 


be  found  for  Iiim.  Sucli,  therefore,  is  the 
legal  eH'ect  of  this  i)lea,  that,  if  the  de- 
fendant has  a  good  justification,  he  cannot 
have  justice,  if  he  plead  the  general  issue  ; 
and  in  this  action,  wliere  the  defendant 
claimed  damages  for  the  injur3'  done  him 
by  the  plaintiff's  cattle,  had  tlie  verdict 
found  the  issue  in  favor  of  the  defendant, 
no  damages  could  have  been  assessed  for 
him."  Holmes  v.  Wood,  6  Mass.  13. 
But  the  defendant  in  an  action  of  replevin, 
since  the  Rev.  Stats.,  c.  113,  §  28,  direct- 
ing that  the  general  issue  in  replevin  shall 
be  joined  on  the  {)lea  of  not  g\iilty,  and 
the  Stat.  1836,  c.  273,  §  1,  by  which  spe- 
cial pleas  in  bar  are  prohibited,  may, 
under  the  general  issue  of  not  guilty, 
prove  tiiat  the  property  of  the  goods 
alleged  to  be  taken  is  in  himself.  Miller 
V.  Sleeper,  4  Cush.  369 ;  Scudder  v. 
Worster,   11  ib.  573. 

In  Indiana,  the  defendant  in  an  action 
of  replevin,  commenced  before  a  justice 
of  the  peace,  and  taken  by  appeal  to  the 
circuit  court,  may,  by  the  statute,  prove 
property  in  himself  or  a  stranger,  with- 
out pleading  it.  Lewis  v.  Masters,  6 
Blackf.  243. 

In  Missouri,  under  the  general  issue, 
the  defendant  may  prove  that  the  plain- 
tiff is  not  entitled  to  tlie  property,  and 
that  the  deed  under  which  the  property 
is  claimed  is  void.  Gibson  v.  Mozier,  9 
Mis.  256. 

The  general  issue — not  guilty  —  in 
replevin,  under  Rev.  Stat,  of  Michigan, 
as  amended  by  the  act  of  1839,  puts  in 
issue  every  fact  stated  in  the  declaration 
necessary  to  sustain  the  action,  and  not 
the  detention  only.  Loomis  v.  Foster,  1 
Mann.  165. 

In  Maine,  a  plea  of  the  general  issue, 
accompanied  by  a  brief  statement  deny- 
ing property  in  the  plaintiff",  does  not 
admit  tlie  plaintiff's  property,  but  leaves 
him  to  prove  it.  Dillingham  v.  Smith, 
30  Maine,  370. 

In  Wisconsin,  tlie  plea  of  "  not  guilty  " 
puts  in  issue  the  right  of  property  or  pos- 
session. Heeron  v.  Beckwitli,  1  Wis.  17. 
And  the  jury  must  find  that  issue  for 
the  plaintiff,  in  order  to  warrant  a  judg- 
ment of  return  or  delivery.  Ib.  This 
plea,  in  replevin  in  the  cejiit  and  dHinet, 
puts  in  issue  both  the  right  of  possession 


and  the  wrongful  taking.  Ford  v.  Ford, 
3  Wis.  399. 

In  New  York,  an  officer  may  give  spe- 
cial matter  in  evidence,  without  notice, 
under  tlie  general  issue.  Coon  v.  Cong- 
den,  12  AVend.  496.  But,  in  general, 
property  in  the  defendant  cannot  be 
shown  without  notice.  Smith  v.  Snyder, 
15  Wend.  324.  Under  the  plea  of  c<-]tit  in 
alio  loco,  the  burden  of  pjoof  is  upon  the 
plaintiff,  as  upon  the  general  plea  of  non 
cepit.     Williams  v.  Welch,  5  Wend.  290. 

In  Illinois,  tlie  plea  of  non  detinet  admits 
the  right  of  [jrojierty  to  be  in  the  jilaintiff, 
and  only  puts  in  issue  the  detention.  In- 
galls  V.  Bulkley,  15  111.  224. 

In  Ohio,  under  this  plea,  all  the  de- 
fences allowable  under  it  and  under  a 
plea  of  property  in  the  defendants  are 
admissible.  Coverlee  v.  Warner,  19  Ohio, 
29. 

Under  the  (Conn.)  statute  of  1863,  au- 
thorizing replevin  for  goods  "  unlawfully 
detained,"  if  the  plea  is  a  general  denial, 
and  the  defendant  does  not  disclaim  title, 
the  plaintiff  must  prove  property  or  a 
right  of  possession.  Kavanagh  v.  Phelps, 
36  Conn.  111. 

In  an  action  of  replevin  in  the  cepit,  not 
following  the  Arkansas  statute  of  replevin, 
where  the  defendant  pleads  non  cepit,  tlie 
plaintiff  is  bound  to  prove  the  wrongful 
taking.  Town  v.  Farrel,  1  Eiuf.  260. 
Under  c.  145,  §  34,  Gould's  Dig.  '(Ark.), 
the  plea  of  non  detinet  puts  in  issue  not 
merely  the  wrongful  detention,  but  the 
plaintiff  's  right  of  property.  Under  the 
plea  of  property  in  tlie  defendant,  travers- 
ing (absque  hoc,  &c.)  the  title  of  the  plain- 
tiff; the  onus  jyrobandi  is  on  the  plaintiff. 
Ib.     Patterson  r.  Fowler,  22  Ark.  396. 

(rt)  In  Massachusetts,  an  answer  that 
the  defendant  was  and  is  the  owner  of  the 
property  replevied,  and  denying  the  plain- 
tiff's right  to  maintain  the  action,  jiuts  in 
issue  the  plaintiff 's  title.  Chase  v.  Allen, 
5  Allen,  599. 

[b]  Under  an  answer  denying  the  plain- 
tiff's title  and  right  of  possession,  the  de- 
fendant may  prove  property  in  himself. 
As  where  he  claims  under  a  pledge,  prior 
to  the  plaintiff's  mortgage.  Such  proof 
is  not  "  in  avoidance  "  within  the  mean- 
ing of  (Mass.)  St.  1852,  c.  312.  Verry  v. 
Small,  16  Gray,  121. 


CH    VII.] 


PLEADINGS. 


83 


and  the  defendant  plead  any  matter  s])owing  a  special  title  or 
property  in  himself  or  a  third  person,  or  joint  title  either  of  him- 
self or  the  plaintiff;  he  must  still  traverse  the  plaintift"'s  title. 
The  issue  must  be  joined  on  the  latter,  the  former  being  mere 
inducement ;  and  the  defendant's  special  right  or  property  will, 
as  evidence,  sustain  him  in  his  traverse,^  (a)  and  entitle  him  to  a 
return.''^  The  onus  probandl  is  upon  the  plaintiff  to  show  an  ex- 
clusive property,  giving  the  right  of  possession.^  (i';) 

§  19.  A  plea  that  the  goods  taken  were  the  property  of  a  third 
person,  naming  him,  and  denying  property  in  the  plaintiff,  is  not 
an  avowry,  but  at  most  a  plea  of  property  in  a  tliird  person. 
The  office  of  an  avowry  is  not  to  deny  property  in  the  plaintiff, 
but  to  set  up  some  right  in  the  defendant  to  take  the  property 
without  regard  to  the  ownership.^ 

§  20.  A  plea,  or  brief  statement,  filed  by  the  defendant,  alleg- 
ing tliat  the  defendant  was  not  in  possession  of  the  property,  at 
the  time  the  same  was  replevied,  nor  claimed  to  own  it  at  that 
time,  is  bad  in  substance.'^ 

§  20  a.  A  plea  of  property  in  a  stranger,  or  in  the  defendant, 
denies  the  plaintiff's  property,  and  gives  the  plaintiff  a  right  to 
begin.^ 

§  21.  An  avowry  must  set  forth  the   title  and  estate  of  the 


1  Pringle  v.  Phillips,  1  Siimlf.  2!t2  ;  1 
Gilm.  80o ;  3  Hair.  o'-V.)  ;  Phillips  c.  Tuwn- 
seiul,  4  Mis.  lUl ;  llogers  v.  Arnold,  12 
Wemi.  30. 

-  Ingraham  v.  Hammond,  1  Hill,  353. 

^  Anderson  v.  Talcott,  1  (Jiim.  3()5 ; 
Chambers  v.  Hunt,  3  Jlarr.  33'J ;  M'llvaine 


V.  Holland,  5  Harr.  22G  ;  Simcoke  v.  Fred- 
erick, 1  Sinitli,  G4  ;  C'uUuin  r.  Bevans,  G 
Harr.  &  J.  46y.  But  see  Amos  v.  Sinnolt, 
4  Scam.  440. 

••  Simcoke  v.  Frederick,  1  Smith,  64. 

*  Sayward  ?'.  Warren,  27  Maine,  453. 

^  Gentry  v.  Borgis,  6  Biackt'.  2t)l. 


{(i)  A  plea,  liowever  defective  in  this 
particuhir,  may  be  cured  by  the  plaintiff's 
replicalioM  of  rigiit  of  property.  1  Gilm. 
3ti5.     Seep.  H4,§21. 

Notwithstanding  the  rule  stated  in  the 
text,  a  ])lea  that  tiie  goods  and  chattels  in 
the  declaration  mentioned  were  not  the 
property  of  the  plaintiff,  without  showing 
who;e  they  were,  is  l)a(l.  It  should  aver 
that  they  were  the  jiroperty  of  tlie  defend- 
ant, or  of  some  tliird  person,  naming  him, 
and  not  the  projierty  of  the  plaintiti".  An- 
8tice  V.  Howes,  3  Denio,  244. 

(b)  III  an  action  to  recover  possession 
of  personal  jirojierty,  tiie  answer  denied 
that  the  iilainlitf  was  the  owner  and  en- 
titleil  to  possession.  Held,  not  a  denial 
that  the  plaintiii'  was  the  owner  of  the 
property,  nor  that  he  was  in  possessiim  of 
it  when  it  was  taken.  Also,  that  a  denial 
that  the  defendant  at  any  time  wrongfully 


took  from  the  possession  of  the  plaintiff 
the  property,  and  that  he  wninglully  de- 
tained such  proi)erty,  was  not  a  denial 
that  he  took  or  withheld  from  the  plain- 
tiff the  property  in  question,  but  was  an 
attempt  to  raise  an  issue  as  to  the  charac- 
ter of  the  acts  complained  of;  which  could 
not  be  material,  miless  the  taking  and 
withholding  were  justified  on  some  legal 
ground,  which  must  be  pleaded.  Rich- 
ardson V.  Smith,  2'J   C'al.  52U. 

Under  a  i)lea  of  iion  ce/>lt,  with  brief 
statement  that  "  the  property  was  the 
property  of  the  defenditnt,  and  not  the 
property  of  the  plaintiff,"  the  bunlen  is 
on  the  plaintift',  under  the  statute  of 
Maine,  to  prove  property  in  himself. 
Otherwise,  it  seems,  if  the  brief  state- 
ment merely  alleges  ])roi)erty  in  the  de- 
fendant. Cooper  V.  Bakeman,  32  Maine, 
iy2;  Green  v.  Diugley,  11  Shepl.  131. 


84  EEPLEVIN.  [book    I. 

defendant.  An  omission  to  do  so  is  held  not  to  be  cured  by  the 
plaintiff's  pleading  over,  and  a  verdict  upon  the  issue. ^ 

§  22.  Upon  plea  of  property,  a  mere  naked  possessory  right, 
without  any  title  to  a  right  of  possession  at  the  time  of  suing  out 
the  writ,  is  not  sufficient.  On  such  issue  the  plaintiff  can  never 
have  judgment,  unless  the  jury  find  the  property  to  be  in  him  as 
alleged  in  his  declaration  and  maintained  in  his  replication.  It 
is  not  sufficient  that  the  inducement  to  the  defendant's  plea  is  not 
proved  true.^  (a) 

§  23.  A  plea,  that  the  goods  had  been  distrained  for  taxes,  is 
good  either  in  abatement  or  in  bar.^  But  a  plea  justifying  under 
a  writ  is  demurrable,  unless  it  aver  that  the  writ  was  in  full  force, 
the  money  unpaid,  and  the  property  taken  in  pursuance  of  its 
authority.-i     (See  §  27.) 

§  24.  In  Delaware,  the  short  plea  of  property  in  defendant  can 
be  understood  only  as  a  claim  of  the  entire  property  in  the  thing. 
It  is  to  be  construed  as  if  drawn  out  in  form.  Even  where,  under 
an  agreement,  parties  were  changed,  and  the  case  went  to  trial 
on  a  plea  of  property  ;  the  court  would  not  look  beyond  the  legal 
meaning  of  the  plea,  into  any  supposed  intention  of  the  parties, 
to  try  the  case  on  a  general  claim  of  property,  not  covered  by 
the  plea,  nor  allow  an  amendment  of  the  plea  after  the  jury  was 
sworn.  The  court  will,  on  motion,  allow  any  short  pleading  to 
be  drawn  out.^ 

§  25.  As  has  been  already  suggested,  a  plea  that  the  property 
of  the  goods  is  in  a  stranger,  not  in  the  plaintiff,  is  a  good  plea  in 
bar  or  abatement,  and  justifies  a  return  without  an   avowry,^  (6) 

1  Harrison  r.  M'Intosh,  1  Johns.  380;  6  Harrison  v.  M'Intosli,  1  Jolins.  380; 
Hopkins  V.  Hopkins,  10  ib.  369 ;  Bain  v.  Edwards  v.  McCurdy,  13  111.  496 ;  Martin 
Clark,  ib.  424.     See  p.  83,  n.  a.  v.    Ray,    1   Blackf.    291.     See   People   v. 

2  Chambers  r.  Hunt,  3  Harr.  239.  New  York,  &c.,  2  Wend.  644  ;  Wright  v. 

3  Deshler  v.  Dodge,  16  How.  622.  Williams,  ib.  632 ;  Presgrave  v.  Saunders, 

4  Dayton  r.  Fry,  2  ib.  525.  6  Mod.  81,  2  Cro.  519. 

5  Mcllvaine  v.  Holland,  5  Har.  10. 

(a)  An  answer,  that  the  defendant  was  Wis.  568.    An  allegation,  in  an  answer  to 

and   is  the  owner  of  the   property,  and  a  plea  that  the  defendant  "  is  rightfully 

denying  the  plaintiff's  right  to  maintain  entitled  to  the  property  and  to  the  posses- 

the   action,  puts   in  issue   the  plaintiff's  sion  thereof,"  following  a  denial  of  all  the 

title.     Chase  v.  Allen,  5  Allen,  599.     It  is  averments  in  the  petition,  is  cumulative 

no  defence  to  an  action  of  replevin,  in  of  these  denials,  and  is  not  new  matter, 

which  the  plaintiff  claims  only  the  right  requiring  a  denial.     Hunt  v.  Bennett,  4 

of  possession,  that  the  legal  title  is  in  a  Greene,  512. 

third  party.     Corbitt  v.  Heisey,  15  Iowa,  (b)  In  Michigan,  the  defence,  that  the 

296.  property  belonged  to  a  third  party,  and 

A  defendant,  who  puts  in  issue  both  the  was   taken  by  legal  proceedings  against 

title  and  the  right  of  possession,  is  en-  him  in  replevin,  is  admissible  under  the 

titled  to  have  both  questions  passed  upon  general  issue,  without  notice.     Snook  v. 

by  the  verdict.     Appleton  v.  Barrett,  22  Davis,  6  Mich.  156. 


CH.    VII.]  PLEADINGS.  85 

and  without  connecting  the  defendant  witli  tlie  title. ^  So  a  clause 
in  a  plea,  averring  that  the  property  is  in  the  succession  of  A, 
without  naming  tlie  persons  in  succession,  is  good  on  demurrer, 
it  being  inducement  to  a  traverse  of  the  plaintiff's  title.'-^ 

§  2G.  It  has  been  sometimes  held,  that  a  statute  authorizing 
double  pleading  does  not  apply  to  replevin,^  In  Virginia,  it  has 
been  held  that  the  defendant  cannot  plead  several  pleas.  But 
the  error  is  cured  by  the  statute  o^  jeofails ^  But,  in  general, 
several  pleas  are  now  allowed.^  Thus  a  defendant  may  plead 
non  cepit,  and  property  in  himself  or  a  stranger,  and  will  not  be 
compelled  to  elect  by  which  plea  he  will  abide.^  Where  both 
non  cepit  and  property  are  pleaded,  a  verdict  upon  the  former 
plea  only  will  be  set  aside." 

§  26  a.  So,  in  Maryland,  by'usage,  the  defendant  may  plead  non 
cepit,  property  in  himself,  and  property  in  a  stranger  ;  and  the 
plaintiff"  may  join  issue  on  the  first,  and  traverse  the  second  and 
third  by  affirming  property  in  himself;  on  which  traverses  issues 
may  be  joined.^  So,  in  Illinois,  pro[)erty  may  be  pleaded  gener- 
ally, and  also  by  a  plea  setting  out  the  title,  specially.^ 

§  27.  The  forms  of  pleading  in  case  of  seizure  under  legal 
process  require  special  notice.     (See  Chap.  V.) 

§  28.  A  party  justifying  under  an  execution  must  show  the 
judgment,  execution,  and  levy.'°  And  a  plea,  relying  on  the  de- 
fendant's seizure  of  the  goods  as  a  constable,  under  an  execution 
against  a  third  person,  should  aver  the  property  to  be  in  such 
third  person. ^^  (a) 

§  29.  Where  the  first  plea  was  of  property  in  one  A  ;  the  sec- 
ond, that  the  defendant  took  the  goods  as  constable  by  virtue  of 
an  execution  against  A,  and  that  the  goods  belonged  to  A  ;  held, 
the  second  plea  might  be  rejected,  on  motion  of  the  plaintiff",  it 
being  substantially  the  same  with  the  first. ^^    But  where  a  sheriff 

^  Loomis  V.  Youla,  1  IMin.  17G.  7  Sprague  v.  Knceland,  12  Wend.  161 ; 

2  Anderson  v.  Dunn,  11)  Ark.  GoO.  Boynton  v.  Page,  13  ih.  4'2.5. 

*  People  V.  Supervisors,  &c.,  6  Wend.  "  Sniitli  v.  Morgan,  8  Gill,  133. 

605.  "  O'Connor    v.    Union,    &c.,    31    HI. 

*  Vaiden  v.  Bell,  3  Rand.  448.  230. 

6  Martin  v.  Kav,  1  lilaokf.  2'.)1.  '«  Truitt  v.  Revill,  4  Harrint;.  71. 

e  Shuter  v.  Page,  11  Johns.  VM'> ;  Dick-  n  Gentry  v.  Borgis,  G  Hlackf.  2(;i. 

son  V.  Mathers,  1  Hemp.  65;  Simpson  v.  l-  Mann  v.  Perkins,  4  Blackf.  271. 
M'Farland,  18  Pick.  427. 

((/)  In  Oliio,  under  tlic  plea  of  nnn  of  certain  executions,  without  special  plea 
detinel,  the  defendant  may  show  that  he  or  notice.  Oaks  v.  Wyatt,  10  tJhio,  344. 
held  the  goods  as  a  constable,  by  virtue 


86  REPLEVIN.  [book  I. 

pleaded,  that  he  had  taken  tlie  property  under  an  attachment 
which  was  in  force  at  the  time  of  the  taking,  and  that  the  property 
belonged  to  tlie  defendant  in  the  process,  and  also,  as  a  distinct 
plea,  that  the  property  belonged  to  the  defendant  in  the  process  ; 
held,  both  pleas  were  good.^ 

§  30.  The  defendant  avowed,  that  he  took  the  goods  by  virtue 
of  a  writ  of  attachment,  delivered  to  him  as  sheriff,  &c.  The  plain- 
tiff replied,  that  he  was  not  sheriff  on  the  day  of  the  issuing  of 
the  attachment,  and  at  the  time  of  the  levy.  Held,  the  plea  was 
bad,  in  attempting  to  put  in  issue  the  fact,  Avhether  the  defendant 
was  sheriff  on  the  day  of  the  issuing  of  the  attachment,  which 
was  wholly  immaterial.^ 

§  31.  The  defendant  avowed  the  taking,  &c.,  by  virtue  of  an 
attachment  against  certain  non-resident  debtors  ;  averred  that 
said  goods  were  the  goods  of  said  debtor,  and  not  of  the  plain- 
tiff; and  prayed  a  return.  The  plaintiff,  by  his  plea,  denied  the 
introductory  part  of  the  avowry,  such  as  the  writ,  the  proceed- 
ings of  the  sheriff,  the  levy,  &c.  Held,  the  plea  was  bad;  the 
denial  of  property  in  the  plaintiff  being  the  material  allegation 
in  the  avowry.^ 

§  32.  Under  an  issue  upon  a  general  plea  of  property  in  the 
defendant,  the  defendant  may  show  any  legal  title ;  as,  that 
the  property  was  sold  by  a  proper  oflScer,  under  a  valid  execu- 
tion, issued  on  a  valid  judgment,  before  commencement  of  the 
action,  and  tliat  he  has  become  the  purchaser.  So,  although  the 
defendant  may  have  set  up  the  same  title,  specially  in  another 
plea  upon  which  there  is  also  an  issue.^ 

§  32  a.  Where,  in  trespass,  the  defendant  justifies  as  an  oflScer 
under  a  writ  of  replevin,  it  is  sufficient  to  allege  in  such  plea, 
that  the  plaintiff  in  replevin  gave  bond,  &c.,  before  the  chattels 
were  delivered  to  him.^  The  plea  must  allege  that  a  bond  was 
given  pursuant  to  the  statute ;  and  that  the  goods  were  not  de- 
tained upon  mesne  process,  &c.,  against  the  plaintiff  in  replevin.^ 

§  33.  The  defendant  justified  the  taking,  as  a  distress  for  rent 
in  arrear,  in  the  form  of  a  p/ea  in  bar,  concluding  with  a  prayer 
of  judgment  and  for  a  return;  the  plea  differing  from  a  cognizance 

1  Scott  V.  Hughes,  9  B.  Monr.  104.  *  O'Connor  v.  Union.  31  III.  230. 

2  James  v.  Dunlap,  2  Scam.  481.  ^  Cushman  v.  Clnircliill,  7  Mass.  97. 

3  Brown  v.  Bissett,  1  N.  J.  267.  «  Moors  v.  Parker,  3  Mass.  310. 


CH.    VII.]  PLEADINGS.  87 

only  in  the  commencement.  The  plaintiff  treated  the  plea  as  a 
cog^nizance,  and  put  in  three  pleas  in  answer  thereto.  The 
defendant  moved  to  strike  out  the  pleas  of  the  plaintiff,  on 
the  ground  that  but  one  answer  could  be  put  in  to  such  plea, 
and  that  by  way  of  replication.  The  motion  was  denied,  be- 
cause the  defendant  had  committed  the  first  fault.  It  was 
doubted,  whether  a  justification  thus  pleaded  would  be  bad  on 
demurrer.! 

§  34.  The  subsequent  recovery  for  rent  due  will  not  prejudice 
the  defence  of  an  avowant  in  replevin,  if  rent  was  due  at  the 
time  of  the  distress  made.^ 

§  35.  In  replevin  for  a  horse  (in  Indiana),  it  is  a  good  plea  that 
the  defendant  took  him  up  as  an  estray,  <fec.,  at  his  residence,  &c., 
and  advertised  him,  &c.,  and  that  the  plaintiff  brought  this  action 
before  ten  days  had  expired,  &,c? 

§  35  a.  Where  an  insolvent  debtor  sells  goods,  the  messenger 
may  set  up  the  title  of  the  purchaser,  after  a  demand,  against  an 
action  of  replevin  brought  by  another  purchaser  from  the  insol- 
vent.* 

§  36,  The  general  replication  de  injuria,  &c.,  to  an  avowry,  is 
bad  on  special  demurrer.^ 

§  37.  In  Ohio,  the  law  allows  a  double  replication.^ 

§  38.  To  a  plea  of  property  in  a  stranger  ;  that  the  defendant 
entered  the  plaintiff's  house  at  night  and  took  the  goods,  is  not  a 
good  answer.'^ 

§  39.  The  replication  must  state  the  time  of  a  plaint  relied 
upon,  with  precision.^ 

§  40.  It  is  a  good  replication,  that  the  defendant  abused  a  dis- 
tress, and  thereby  became  a  trespasser  ab  initio.^ 

§  41.  A  plea  of  property  avoids  the  injustice  of  the  taking,  and 
the  replication  must  set  forth  such  facts  as  will  give  the  right  of 
dominion  and  control  even  against  the  legal  title. ^*^ 

§  42.  On  a  plea  of  property  in  A  and  B,  a  replication  that  A 
and  the  plaintiff  are  the  same  is  bad.^^ 

§  43.  Where  the  defendant  pleads  7ion  detinel  and  property,  the 

1  McPherson   v.  Melhincli,  20  Wend.  6  Cotter  v.  Doty,  5  Ham.  303. 

671.  T  Harrison  r.  .Ai'Intosh,  1  Jolins.  380. 

2  Lander  v.  Ware,  1  Strobh.  15.  8  Lislier  v.  Peirson,  2  Weixi.  345 

3  Barnes  v.  Tanncliill,  7  Blackf.  604.  9  Hopkin.s  ;•.  Hopkins,  10  .Johns.  360. 
*  Kopes  1.'.  Lane,  0  Allen,  502.  10  Dixon  v.  Tliaciicr,  14  Ark.  141. 

5  Hopkins  v.  Hopkins,  10  Joiins.  369.  "  Pliillips  v.  Townsend,  4  Mis.  101. 


88  REPLEVIN.  [book  I. 

want  of  a  replication  to  the  latter  plea  is  not  ground  to  reverse 
the  judgment.^ 

§  44.  Where  the  defendant  avows  the  taking,  under  a  vote  of 
the  town  to  raise  money  to  be  expended  upon  a  highway,  a  repli- 
cation, that  the  highway  was  never  legally  laid  out,  is  sufficient.^ 

§  45.  One  joint-owner  of  a  sloop  brought  replevin  against  his 
co-owner.  The  defendant  pleaded  property  in  himself,  and  nega- 
tived the  plaintiff's  allegation  of  property;  and  the  plaintiff  re- 
plied, denying  the  defendant's  claim  of  property,  and  affirming 
his  own.  Held,  the  plaintiff  was  bound  to  show  that  he  was  the 
owner,  and  entitled  to  exclusive  possession  ;  and,  as  the  jury 
found  that  the  parties  were  joint-owners,  the  defendant  was  en- 
titled to  a  verdict.^ 

§  46.  Where  property  in  the  defendant  was  pleaded,  and  the 
plaintiff  replied  that  the  property  was  not  in  the  defendant  but  in 
the  plaintiff:  held,  the  burden  of  proof  was  on  the  plaintiff, 
to  show  an  exclusive  right  of  possession  ;  that  the  defendant, 
having  traversed  the  title  of  the  plaintiff,  was  not  bound  to  prove 
the  affirmative  part  or  inducement  of  his  plea,  but  might  rebut  the 
proof  offered  by  the  plaintiff;  and  migiit  show  that  he  and  the 
plaintiff  were  joint-owners,  in  order  to  rebut  the  exclusive  pos- 
session of  the  plaintiff.* 

§  47.  Where  a  defendant  in  replevin  pleads  property  in  a  third 
person,  traversing  the  plaintiff's  right;  a  replication,  traversing 
the  former  right,  and  setting  up  a  general  property  in  another, 
and  a  special  propert}''  in  the  plaintiff,  is  bad  ;  1,  for  not  taking 
issue  upon  the  traverse  ;  2,  for  traversing  matter  of  inducement ; 
3,  if  such  matter  could  be  replied,  for  alleging  the  evidence  of 
title,  instead  of  the  legal  effect  of  the  evidence.  The  plaintiff 
should  have  accepted  the  issue  tendered,  reaffirmed  his  title,  and 
concluded  to  the  country.^ 

§  48.  Plea  of  property  in  two  of  the  plaintiffs  and  A.  Repli- 
cation, that  the  goods  had  been  possessed  jointly  by  tlie  plaintiffs 
and  A  ;  that  they  had  been  put  into  a  company  composed  of  the 
plaintiffs  and  A,  and  converted  into  stock  represented  by  scrip 
transferable  by  assignment ;  and  that  A  transferred  and  assigned 
all  his  stock  to  the  plaintiffs,  or  some  of  them,  and  the  goods  in 

1  Fcirrell  v.  Humphrey,  12  Ohio,  112.  *  Hunt  v.  Chambers,  1  N.  J.  620. 

2  Stoddard  v.  Gihiian,  22  Vt.  568.  5  Prosser  v.  Woodward,  21  Wend.  205. 

3  Cliambers  v.  Hunt,  2  N.  J.  552. 


CH.    VII.]  AMENDMENT  —  EVIDENCE.  89 

suit  are  part  of  the  goods  so  transferred  and  assigned.  Held, 
this  reph'cation  was  bad  in  substance  as  well  as  form.^ 

§  49.  Pleaof  propert^'in  A,  and  tliat  the  defendant  was  entitled 
to  possession,  with  a  direct  denial  of  tlie  ownership  of  the  plain- 
tiffs. Replication,  a  sale  of  the  right  and  title  of  A  to  the  plain- 
tiffs, and  that  the  plaintiffs,  at  the  time  when,  <fec.,  were  owners, 
and  entitled  to  possession.  Rejoinder,  that  the  plaintiffs  were 
not  owners  nor  entitled  to  possession.  Held,  on  demurrer,  a 
material  issue  was  raised  by  the  rejoinder;  that  the  plea  alleged 
a  superfluous  fact  (the  right  of  possession  in  the  defendant),  and 
the  replication  was  defective,  in  not  showing  the  time  of  the 
alleged  sale ;  but  both  these  statements  might  be  disregarded  in 
view  of  the  issue  substantially  raised.'^  (a) 

§  50.  Where  the  plaintiffs  sued  out  a  writ,  in  the  (Michigan) 
Circuit  Court,  for  detention  of  property  in  Hampton,  in  Saginaw 
County,  and  the  defendants,  taking  issue  on  this  in  their  notice, 
justified  the  detention  in  that  county ;  held,  the  plaintiffs  were 
not  estopped  from  proving  that  the  property  was  taken  under 
attachment  at  Hampton  in  Bay  County.^ 

§  51.  A  writ  of  replevin  may  be  amended,  by  adding  to  the  de- 
scription of  the  property  sued  for  the  words,  ''  of  the  value  of 
twenty-five  dollars."^  So  a  writ  of  replevin,  in  an  action  pend- 
ing in  one  county,  which  alleges  the  taking  of  the  goods  to  have 
been  in  another,  may  be  amended  by  alleging  the  taking  to  have 
been  in  the  former  ;  it  being  obviously  a  clerical  error,  and  it 
being  apparent  that  the  real  grievance  complained  of  is  a  taking 
in  the  former.^  So  an  officer,  directed  by  a  writ  of  replevin  to 
replevy  certain  goods,  provided  the  plaintiff  should  give  a  bond 
to  the  defendant,  "  with  sufficient  surety  or  sureties,  in  the  sum  of 
dollars,  being  twice  the  value  of  the  said  goods,"  took  a  bond, 
with  two  sureties,  and  served  the  writ.  Held,  under  a  statute 
allowing  amendments  in  form  or  substance  "  of  any  process,"  the 
plaintiff  might  amend  his  writ  by  striking  out  the  words  "  surety 
or,"  and  the  service  was  valid.^ 

§  52.  With  regard  to  the  evidence  in   the   action  of  replevin  ; 

1  Pattison  v.  Adams,  Hill  &  Den.  426.  See   Wlieaton   v.  Catterlin,  23  Ind.  85-; 

■^  II).  Garner  r.  Anderson,  1  Str.  11. 
»  Craip;  v.  Grant,  6  Mich.  447.  5  Jiidson  v.  Ailams,  8  Cush.  556. 

4  Jaques  v.  Sanderson,  8   Cusli.  271.  «  Poyen  v.  McNeill,  10  Met.  291. 

(rt)  In  replevin,  there  is  no  replication  of  new  assignment.  Potter  v.  North,  1 
Saun.  347. 


90  REPLEVIN.  [book   I. 

in  general,  tlie  burden  of  proof  is  on  the  plaintiff.^  Thus,  under 
a  plea  traversing  the  plaintiff's  title.  Otherwise,  under  a  plea 
of  property  in  the  defendant,  without  such  traverse.^ 

§  52  a.  It  is  held,  that,  in  general,  a  demand  is  not  necessary 
to  sustain  replevin  for  an  unlawful  detainer.^  As,  upon  plea  of 
property;*  or  in  an  action  against  the  purchaser  from  a  bailee  ;^ 
or  a  bond  fide  purchaser  from  a  wrong-doer.^  But  on  the  other 
hand  the  rule  is  laid  down,  that  when  the  taking  was  illegal  no 
demand  is  necessary,  but,  when  the  defendant  came  lawfull}"^  into 
possession,  the  plaintiff  must  prove  a  demand  and  refusal,'^  and 
the  same  proof  is  required  as  in  trover  and  conversion ;  ^  that  the 
owner  of  goods  cannot  maintain  replevin  against  one  lawfully  in 
possession,  without  a  previous  demand  and  refusal,  or  acts  amount- 
ing to  a  conversion,  (a)  which  acts  may  consist  in  a  repudiation  of 
the  right  of  the  owner,  or  the  exercise  of  a  dominion  inconsistent 
therewith.  Thus  A  mortgaged  oxen  to  B,  to  secure  a  note. 
After  the  note  w^as  due,  B  requested  payment.  A  did  not  pay, 
but  took  the  oxen  into  the  woods  for  lumbering.  B,  without 
demand,  brought  replevin.  Held,  the  action  could  not  be  main- 
tained.^ So  the  owner  of  chattels  cannot  maintain  replevin  to  re- 
cover them  from  a  purchaser  in  good  faith  from  a  wrongful  taker, 
until  after  demand. ^°  So,  for  breach  of  covenant  to  deliver  leased 
property  at  the  end  of  the  term,  replevin  does  not  lie  without 
demand. ^1  So  replevin  does  not  lie  for  goods  which  were  in  a  house 
that  the  plaintiff  had  no  right  to  enter,  where  the  defendant  re- 
fused him  admission,  but  offered  to  put  out  his  goods,  if  called 
for.^^  So  where  a  sewing-machine  was  sold  and  delivered,  a  part  of 
the  price  being  paid,  the  rest  to  be  paid  by  instalments,  and  the 
purchaser  refused  to  pay  further,  upon  the  ground  that  the 
machine  did  not  conform  to  the  agreement ;  held,  the  seller  could 
not  maintain  replevin  without  return  of  the  money  received  and 
a  demand  fo   the  machine. ^^ 

1  Mors;an  u.  Bisjgs,  46'Mis.  65.  (Iowa)    23;    Stratton  v.  Allen,  7    Minn. 

2  Chandler  v.  Lincoln,  52  111.  74.  502. 

3  Lewis  V.  Masters,  8  Blackf.  244.  8  ingalls  v.  Bulkley,  13  111.  315. 

*  Seaver  v.  Dingley,  4  Greenl.  306.  ^  Newman  v.  Jenne,  47  Maine,  520. 

5  Galvin  v.  Bacon,  2  Fairf.  28.  l»  Conner  v.  Comstock,  17  Ind.  90. 

6  Conner  v   Comstock,  17  Ind.  90.  l^  White  v.  Brown,  5  Lans.  78. 
1  Stanchfield    v.    Palmer,    4    Greene,  12  Bent  v.  Bent,  44  Verm.  633. 

13  Hamilton  u.  Singer,  54  111.  370. 

[a]  In    Arkansas,   the  plaintiff,  in   re-  from  the  plaintiff,  or  some  other  person, 

plevin  for  detaining  property,  must  adopt  to  be  delivered  to  the  plaintiff,   and  are- 

the  statutory  form  of  declaring,  and  allege  fusal  to  redeliver  after  a  special  request 

a  receipt  of  the  property  by  the  defendant  or  demand.     Pirani  v.  Barden,  5  Pike,  81. 


CH.   VII.] 


EVIDENCE. 


91 


§  53.  In  replevin  in  tlie  detinet,  if  necessary  to  prove  a  demand 
and  refusal,  tlio  demand  must  be  made  eitlier  by  the  plaintiff  or 
an  authorized  agent,  showinj^  such  evidence  of  authority  as  would 
satisfy  a  prudent  man.  Tlie  question  of  authority  is  for  the 
jury.i 

§  54.  But,  notwithstanding  lawful  possession,  the  owner  may 
bring  replevin  without  demand,  if  the  possessor  has  exercised 
acts  of  ownership  inconsistent  with  the  plaintiff's  title;  as  by 
attempting  to  sell,  &c?  And  it  is  held,  that  a  demand  is  not  often 
necessary  in  case  of  unlawful  detainer.  It  may  be  necessary 
where  the  defendant  has  the  goods  by  leave  and  license.  But 
not  whore,  without  such  demand,  there  is  a  wrongful  possession  ; 
as  where  they  were  obtained  by  force,  fraud,  or  otherwise,  with- 
out  the    owner's  consent.^  (a)     Thus    no   demand    is    necessary, 


1  Tn^alls  V.  Bulkley,  13  III.  315. 

2  Henry  v.  Fine,  23  Ark.  417  ;  Prater 
V.  Frazier,  6  Eng.  249. 

{«)  In  replevin  under  tlie  (Del.)  statute 
for  wronuful  detention  of  property,  proof 
of  a  demand  and  refusal  is  neces.sary. 
Windsor  i'.  Hoj'ce,  1  Ilous.  605. 

In  New  York,  where  the  action  is  in 
the  detinet,  a  previous  demand  is  not  nec- 
essary, nor  except  as  at;ainst  an  innocent 
holder.  To  charfje  the  defendant  with 
notice,  it  is  necessary  only  to  prove  that 
the  circumstances  and  facts  known  were 
such  as  ouiiht  to  liave  led  him  to  inquiry. 
Pringle  r.  Piiillips,  5  Sandf.  157.  So  in 
replevin  in  the  fli-h'net  no  demand  is  neces- 
sary, where  the  taking  was  unlawful. 
Stilman  v.  Sqnire,  1  Denio,  327;  which 
may  be  proved  in  this  form  of  action. 
Pringlc  (•.  Phillips,  5  Sandf.  157;  6  Hill, 
613.  A,  having  wrongfully  taken  a  note 
belonging  to  B  from  his  possession,  after- 
wards delivered  it  to  C,  an  attorney  at 
law,  and  H  then  brought  replevin  in  the 
detinet  against  C,  without  demand.  Held, 
B  was  entitled  to  recover,  unless  C  held 
the  note  lio7ia  Julc  and  for  a  lawful  pur- 
pose, e.  (/.  to  collect ;  and  the  onus  of  prov- 
ing this  lay  upon  him.  A  receipt  signed 
by  C,  and  dated  at  or  about  the  time  of 
the  delivery  of  the  note  to  him,  acknowl- 
edging that  it  was  left  by  A  for  collection, 
is  not  }>pr  sp  evidence  of  the  fact.  Pierce 
V.  Van  Dyke,  G  Hill.  CIS. 

In  Mississippi,  no  demand  is  essential 
to  an  action  of  rejjlevin,  by  statute  ;  but 
if,  after  suit  brought,  the  defendant, 
whose  original  possession  was  lawful, 
tenders  the  property  to  the  plaintitl',  and 
delivers  it  with  a  proper  plea;  the  action 


3  Lewis  V.  Masters,  8  Blackf.  214 ;  ace. 
M'Neill  V.  Arnold,  17  Ark.  154. 


will  be  discharged.  Dcering  v.  Ford,  13 
S.  &  M.  2r)<). 

In  Illinois,  to  maintain  replevin  for  de- 
tention, a  ijlaintifl'need  not  prove  demand 
and  refusal,  if  the  goods  were  either  ob- 
tained unlawfully,  or  purchased  by  one 
privy  to  his  vendor's  fraud,  or  held  in 
violation  of  an  agi'eement  to  sell  them 
and  deliver  the  proceeds  to  the  true 
owner.     Butters  v.  Ilaughwout,  42  111.  18. 

In  Iowa,  proof  of  demand  is  required 
in  rei)levin,  onlv  where  it  is  necessary  to 
terminate  the  defendant's  right  of  posses- 
sion, or  confer  on  the  plaintitl  that  right; 
not  where  both  parties  claim  title,  and 
the  right  of  possession  is  incident  thereto. 
Smith  r.  McLean,  24  Iowa,  ^22.  Where 
A  and  B  both  claimed  a  steer,  and  A, 
who  had  possession,  refused  to  allow  B  to 
take  away  the  animal,  and  B  se])arated  it 
from  A's  drove  and  took  it  away  ;  held, 
that  no  demand  was  necessary  in  order 
that  A  might  maintain  replevin.  Delan- 
cey  ('.  Holcomb,  2()  Iowa,  •,)4. 

In  Wisconsin,  demand  made  of  a  per- 
son, who,  under  an  e.xtrajudicial  order  of 
the  coimty  court,  has  taken  charge  of  the 
eflects  of  a  deceased  intestate,  by  the 
owner  of  property  lawfully  in  the  intes- 
tate's possession  at  his  death,  is  sufficient 
to  sustain  replevin  against  such  ])erson, 
and  against  an  administrator  impleaded 
with  him.  Lills,  &c.,  Co.  v.  IlusscU,  22 
Wis.  178. 

Demand  is  unnecessary  under  the  Ne- 
braska Code,  §§  l'Jl-2.  lloman  v.  Laboo, 
1  Neb.  204. 


92  REPLEVIN.  [book   I. 

before  bringing  replevin  for  a  horse  purchased  by  the  defend- 
ant at  an  illegal  sale  by  a  poundmaster.i  Nor  where  one  holds 
under  a  trespasser.^ 

§  55.  The  necessity  of  a  demand  is  often  brought  in  question 
in  connection  with  the  taking  of  goods  by  virtue  of  a  writ  or 
execution.     (See  Chap.  V.) 

§  56.  No  demand  is  necessary,  to  sustain  replevin  against  a 
constable  who  levies  on  goods  in  possession  of  the  debtor.^  Nor 
against  a  sheriff,  to  recover  property  illegally  seized  on  execu- 
tion."* So  wliere  goods,  obtained  by  fraudulent  purchase,  are 
seized  under  a  warrant  of  insolvency,  as  the  property  of  the 
buyer;  the  seller  may  maintain  replevin  therefor  against  the  mes- 
senger, without  demand.  In  cases  of  a  writ  of  attachment  and  a 
warrant,  alike,  "  the  taking,  in  order  to  be  rightful,  must  be  con- 
fined to  the  property  of  the  party  against  whom  the  precept  is 
issued  ;  and  the  rights  of  third  persons  whom  such  party  has 
deceived  and  defrauded  cannot  be  impaired."^ 

§  57.  Goods  of  a  company  were  attached,  and  A  and  B  gave  a 
receipt  therefor  to  the  ojfficer ;  the  company  then  conveyed  all 
its  personal  property  to  A,  B,  C,  D,  E,  and  others,  to  be  held  by 
them  as  their  security  and  indemnity  against  all  existing  and 
future  liabilities,  as  indorsers,  sureties,  receiptors,  or  promisors 
for  said  company.  The  property  was  delivered  to  A  and  B  for 
themselves  and  the  others,  with  an  understanding  that  the  com- 
pany should  proceed  in  its  business,  and  that,  as  the  property 
should  be  wrought  up  and  changed  and  new  property  acquired, 
the  same  should  go  into  B's  possession.  The  company  proceeded 
as  it  had  done  before  ;  D  and  E  and  others  became  sureties  for 
some  of  the  goods  purchased  for  the  company ;  and  all  the  com- 
pany's property,  subsequently  acquired,  went  into  B's  possession. 
A  and  B  paid  the  judgment  in  the  suit.  C  attached  the  property 
in  B's  possession,  to  secure  a  sum  which  he  had  paid  for  the 
company;  and  A  and  B  replevied  it.  Held,  that,  if  the  convey- 
ance to  A  and  others  was  valid,  yet  A  and  B  could  not  maintain 
replevin  without  a  demand  on  the  officer  or  creditor,  and  stating 
an  account  of  the  sum  due  to  them  pursuant  to  the  (Mass.)  Rev. 
Sts.  c.  90,  §§  78,  79.6 

1  Clark  y.  Lewis,  35  111.  417.  6  Bussing  v.  Rice,   2   Cush.  48;   per 

2  Ballow  V.  O'Brien,  20  Mich.  304.  Metcalf,  J.,  49. 

3  Bancroft  v.  Blizzard,  13  Ohio,  30.  ^  Buck  v.  Ingersoll,  11  Met.  226. 
*  Ledley  v.  Hays,  1  Cal.  160. 


CH.    VII.]  EVIDENCE.  93 

§  58.  The  issuing  of  a  writ  of  replevin  to  the  sheriff  is  the 
commencement  of  the  suit,  and  demand,  if  necessary,  must 
be  made  before  that  time.^  But  where  a  writ  of  replevin  is  de- 
livered to  an  officer,  and  he  is  directed  before  serving  it  to 
demajid  the  goods,  which  he  does  on  the  same  day  it  is  made  ; 
the  writ  and  service  thereof  are  good.  The  court  remark:  "If 
the  defendant  had  delivered  the  goods  upon  the  demand,  there 
would  have  been  no  necessity  to  serve  the  writ.  It  may  be  con- 
sidered as  purchased  at  any  moment  of  the  day  of  its  date  which 
will  most  accord  with  the  truth  and  justice  of  the  case."^ 

§  59.  Where  one  claiming  bales  of  cotton  on  board  a  ship,  for 
which  bills  of  lading  have  been  signed,  demands  the  bills  of 
lading,  it  is  a  sufficient  demand  of  the  cotton.^ 

§  60.  A  defendant  in  replevin,  who  succeeds  at  the  trial,  under 
the  plea  of  non  detinet,  on  the  sole  ground  that  the  property 
should  have  been  demanded  before  suit  brought,  is  not  entitled 
to  judgment  for  a  return,  or  for  the  value  of  the  property.'* 

§  60  a.  Evidence  should  not  be  admitted  as  to  the  value  of  the 
property,  if  the  answer  does  not  deny  the  allegation  of  the  com- 
plaint thereon.'^  So,  where  the  affidavit  for  obtaining  a  writ  of 
sequestration,  and  the  defendant's  bond  for  replevying,  state  the 
value  of  the  property,  but  the  plaintiff's  petition  for  recovery 
of  the  property  does  not ;  evidence  of  the  value  is  not  ad- 
missible.'' 

§  60  b.  There  should  be  proof  of  identily  of  the  property  re- 
plevied with  the  property  of  the  plaintiff."  Identity  is  a  question 
for  the  jury  to  determine.^ 

§  60  c.  Tlie  plaintiff  need  not  prove  the  averments  in  his  affi- 
davit, that  the  property  "  had  not  been  taken  by  virtue  of  any 
tax,  &c.,  nor  seized  under  any  execution,  &c."^ 

§  GO  d.  In  replevin  against  a  person,  claiming  as  administra- 
tor certain  barrels  of  ale  left  among  the  effects  of  the  intestate 
at  his  death,  in  January,  18GT;  an  account  found  among  his 
papers,  charging  him  with  lots  of  ale  delivered  in  September  and 
October,  18G5,  crediting   him  with  "  commission  "  on  each,  and 

1  Underwood  v.  Tatham,  1  Cart.  226.  6  Gillies  r.  Woflbrd,  26  Tex.  76. 

2  Badjier  i\  Pliinney,  15  Mass.  35y ;  "^  Stanclifield  v.  Talmer,  4  Greene 
per  Putnam,  J.,  304.  (Iowa),  23.     See  §  64. 

'^  Zachrisson  v.  Aliman,  2  Sandf.  68.  **  Vennam  v.  Tiioinpson,  38  111.  143. 

*  Pierce  v.  Van  Dyke,  6  Hill,  613.  9  Carney  v.  Doyle,  14  Wis.  270. 

5  TuUy  V.  Harloe,  35  Cal.  302. 


94  REPLEVIN.  [book    I. 

acknowledging  payment  of  balance  in  the  plaintiff's  name  by  A  B, 
was  iield  admissible  in  evidence  for  the  plaintiff,  as  having  some 
tendency  to  show  that  the  ale  replevied  was  held  on  commission, 
although  it  did  not  appear  whether  A  B  was  an  agent  of  the 
plain  tiff.i 

§  GO  e.  Where  a  plaint  in  replevin  describes  the  property  in 
suit  as  two  hay  horses,  and  the  proof  shows  that  one  of  them 
was  a  sorrel  horse,  the  variance  is  fatal.^ 

§  60/.  The  answer  alleged,  that  the  defendant  took  the  prop- 
erty as  the  property  of  A,  under  "  certain  writs  of  attachment 
duly  allowed,  &c.,  in  certain  suits  therein  pending;  wherein  cer- 
tain persons  (naming  them),  and  other  parties,  creditors  of  said 
A  were  plaintiffs,  and  said  A  was  defendant."  Held,  although 
the  pendency  of  the  actions  should  have  been  alleged  more 
definitely,  at  least  by  designating  the  plaintiff  in  each  action ; 
the  variance  between  the  allegation  and  proof  was  not  material, 
in  the  absence  of  proof  that  the  plaintiff  was  misled  to  his 
prejudice  thereby.  Also,  that  an  objection  to  the  evidence, 
because  it  showed  that  all  the  writs  of  attachment,  except  one, 
were  issued  after  the  taking,  was  untenable,  as  damages  were 
claimed  for  detention.^ 

§  61.  Where  non  cepit  only  is  pleaded,  the  right  of  property  is 
not  put  in  issue ;  it  is  only  necessary  that  the  plaintiff  should 
prove  that  the  defendant  was  in  possession,  at  the  place  named, 
when  the  suit  was  commenced  ;  though  without  such  proof  the 
action  cannot  be  maintained.^  But  where  property  is  set  up  in 
the  answer,  the  burden  of  proof  is  on  the  plaintiff.^ 

§  62.  Evidence  of  forcible  taking  may  be  given,  though  the 
issue  be  formed  exclusively  on  a  plea  of  property.^ 

§  63.  The  plaintiff,  in  proving  property,  may  use  an  execution 
in  which  he  is  defendant,  and  under  which  the  property  was 
delivered  to  him  on  a  forthcoming  bond,  without  producing  the 
judgment.'^ 

§  64.  In  replevin  for  negroes,  the  plaintiff  introduced  an  agree- 
ment, under  which  he  claimed  title,  derived  from  A,  having  first 
shown  title  in  A.     The  defendant  objected,  that  the  plaintiff  had 

1  Lill's,  &c.,   Co.  V.  Eussell,  22   Wis.  *  Sawyer  v.  Huff,  25  Maine,  464. 
178.  5  Turner  v.  Cool,  23  Ind.  57. 

2  Taylor  v.  Riddle.  35  111.  567.  -^  Moore  v.  Shenk,  3  Barr,  13. 

3  Blackman  v.  Wlieaton,  13  Minn.  326.  ^  Lynch  v.  Welsh,  ib.  294. 


CH.    VII.]  EVIDENCE VERDICT.  95 

not  shown  the  identity  of  tlie  negroes.  Held,  tlie  evidence  was 
admissible,  although  tlie  identity  was  to  be  afterwards  shown. ^ 

§  65.  In  replevin  I'ur  a  horse,  the  plaintiff  may  prove  that  the 
defendant  gave  a  general  order  to  his  servants,  before  the  com- 
mencement of  the  suit,  not  to  deliver  the  horse  to  the  plaintiff, 
as  tending  to  prove  an  unlawful  detention.^ 

§  GQ.  In  replevin  for  six  cases  of  prints,  containing  a  specified 
number  of  pieces,  and  a  property  bond  given,  reciting  the  tenor 
of  the  writ ;  the  return  was,  "  replevied,  summoned,  and  claim, 
property  bond  given."  Held,  evidence  was  not  admissible  to 
show  that  a  less  number  of  i)ieces  was  replevied." 

§  67.  In  an  action  of  replevin  of  goods  attached  by  the  defend- 
ant as  an  officer,  on  a  writ  against  a  stranger,  such  stranger  is  an 
incompetent  witness,  by  reason  of  interest,  to  prove  that  the  prop- 
erty was  in  himself.'* 

§  68.  Goods  sold  were  attached  as  the  property  of  the  vendor, 
and  replevied  from  the  officer  by  the  vendee,  and  the  subscribing 
witness  to  the  bill  of  sale  became  a  surety  on  the  replevin  bond. 
For  this  reason,  at  the  trial  of  the  action  of  replevin,  the  officer 
objected  to  the  introduction  of  such  witness  to  prove  the  execu- 
tion of  the  bill  of  sale,  and  the  vendee  thereupon  offered  to  pro- 
cure a  new  surety,  but  the  officer  would  not  consent.  Held,  the 
execution  of  the  bill  of  sale  might  be  proved  by  other  evidence; 
and  the  vendee  was  not  bound  to  procure  the  vendor  as  a  witness 
for  this  purpose.^ 

§  69.  Where  several  actions  of  replevin  are  tried  together  be- 
fore the  same  jury,  by  order  of  the  judge,  a  surety  in  one  of  the 
bonds  is  a  competent  witness  in  the  cases  in  which  he  is  not  in- 
terested, though  the  party  offering  him  does  not  substitute  a  new 
surety  in  his  place.^ 

§  70.  In  replevin,  the  defendant  justified  as  a  deputy  sheriff, 
alleging  the  property  in  the  chattels  to  be  in  A  B  and  C  D, 
and  that  he  had  attached  a  moiety  as  the  property  of  C  D.  The 
issue  being  on  the  property  of  the  plaintiff,  C  D  is  a  competent 
witness  to  prove  the  property  in  himself  and  A  B.^ 

§  71.  In  reference  to  the  form  of  the  verdict,  wliere  there  is  an 
allegation  of  ownership,  a  general  finding  for  the  plaintiff  settles 

1  Brooke   v.  Berry,  1   Gill,  153.  See  *  Tratt  r.  Steplienson,  IG  Pick.  325. 

§  60  b.  5  Ilaynos  v.  Uiitter,  24  Pick.  242. 

■-'^Jolinson  V.  Howe,  2  Gilm.  342.  6  Kimball  v.  Tliompson,  4  Cu<h.  HI. 

3  Knowles  v.  Lord,  4  Wliart.  500.  ^  Paye  v.  Weeks,  13  Masa.  iy9. 


96  REPLEVIN.  [book   I. 

this  point  in  his  favor.^  So  a  verdict,  "  the  jury  find  for  the 
plaintiff  and  against  the  defendant,"  is  sufficient  in  substance.^ 
So  the  verdict  may  use  the  terms  "  said  property,"  if  specifically 
described  in  the  complaint.^  So,  in  Indiana,  in  a  suit  to  recover 
personal  property,  where  one  defendant  claims  title  and  the  other 
disclaims  title  and  possession  ;  a  finding,  "  that  the  possession  of 
the  property  mentioned  in  the  complaint  be  given  to  the  plain- 
tiff," is  equivalent  to  finding  the  property  in  the  plaintiff,  and 
that  he  is  entitled  to  the  possession.*  So  a  verdict  "  for  the  de- 
fendants "  settles  the  unlawful  taking,  that  the  defendant  is  en- 
titled to  possession,  and  a  breach  of  the  bond  to  prosecute  the 
action  with  effect.^  And  it  is  held,  that,  if  the  answer  admits  a 
taking  and  detention,  the  verdict  need  not  find  it.^  So  in  a  suit 
for  unlawful  taking  and  detainer,  and  an  answer  of  property  in 
the  defendant,  property  in  one  A, and  a  denial:  a  verdict  "  for  the 
plaintiff;  find  the  property  in  the  horse  to  be  in  him,  and  that  he 
is  entitled  to  the  possession,"  &c. ;  also,  finding  the  value  ;  was 
held  sufficient." 

§  72.  Where  the  defendant  pleads  property  in  himself  and 
others,  representatives  of  A,  property  in  B,  and  also  property  in 
himself  alone,  and  issues  are  joined  ;  a  verdict  on  the  first  plea 
alone,  disregarding  the  other,  is  sufficient.^  So  where  the  de- 
fendant pleaded,  1st,  non  cepit ;  2d,  an  avowry,  averring  the 
goods  taken  to  be  his  property  ;  to  which  the  plaintiff  replied, 
and  took  issue,  &c. ;  and  the  jury  found  a  general  verdict  for  the 
plaintiff  on  the  issue  of  non  cepit,  without  any  finding  as  to  the 
other  issue  :  judgment  was  given  according  to  the  verdict.^  So 
the  defendant  pleaded,  first,  that  the  property  was  in  himself  and 
not  in  the  plaintiff;  and,  secondly,  that  the  property  was  in  one 
W,  and  was  taken  by  the  defendant,  a  deputy  sheriff,  as  his  prop- 
erty, and  traversed  that  the  property  was  in  the  plaintiff.  The 
latter  replied  that  the  property  was  in  himself,  and  tendered  an 
issue,  which  was  joined.  Held,  upon  these  pleadings,  the  jury 
might  find  that  a  part  of  the  property  belonged  to  the  plaintiff, 
and  assess  damages  for  its  detention,  and  that  the  residue  of  the 
property  did   not  belong  to  the  plaintiff,  and  assess  damages  for 

1  Rowan  v.  Teague,  24  Ind.  304.  6  Wilcoxon  v.  Annesley,  23  Ind.  285. 

'i  Coit  V.  Waples,  1  Min.  134.  ^  Clark  v.  Heck,  17  Ind.  281. 

3  Anderson  v.  Lane,  32  Ind.  102.  8  Ramsey  v.  Waters,  1  Mis.  406. 

*  Robertson  v.  Caldwell,  9  Ind.  514.  9  Thompson  v.  Button,  14  Johns.  84. 
5  Wheat  V.  Catterlin,  23  Ind.  85. 


CH.  VII.]  VERDICT — DAMAGES.  97 

the  defendant.  In  such  a  case,  the  verdict  is  considered  as  re- 
turned upon  an  issue  joined,  because  effect  is  given  to  it  in  the 
same  manner  as  though  the  dechiration  had  contained  two  counts 
for  tlie  respective  articles,  or  the  defendant  had  avowed  for  each 
respectively.^  So  a  verdict  of  not  guilty,  and  for  a  return  of  only 
part  of  the  goods  replevied,  is  not  invalid.^ 

§  73.  Where  a  verdict  for  the  plaintiff  does  not  assess  the  dam- 
ages, nor  the  value  of  the  property,  the  court  may  amend  the  ver- 
dict so  far  as  to  give  nominal  damages.  The  value  need  not  be 
assessed  at  common  law  or  under  the  statute  of  Minnesota,  as  the 
verdict  does  not  require  a  return.^ 

§  73  a.  A  verdict,  assessing  the  value  of  goods,  to  be  reduced  by 
a  factor's  advances  and  charges  not  assessed,  is  not  a  verdict  on 
which  any  judgment  can  be  rendered.'* 

§  73  6.  A  verdict,  "  for  the  defendant,  $50,"  implies  that  the 
plaintiff  is  entitled  to  the  property  by  paying  $50.  Judgment 
should  be  rendered  on  a  verdict,  and  not  for  a  return.^ 

§  73  c.  In  a  suit  to  recover  a  horse,  the  defendant  answered, 
(1.)  property  in  himself,  (2.)  in  a  third  person,  (3.)  denial.  Held, 
a  verdict,  "We,  the  jury,  find  for  the  plaintiff;  find  the  property 
in  the  horse  to  be  in  him,  and  that  he  is  entitled  to  possession, 
&c. ;  we  also  find  the  value  of  the  horse  to  be  $125,"  sufficiently 
covered  all  the  issues.*^ 

§  73  d.  Judgment  for  the  plaintiff  is  erroneous,  upon  a  special 
finding  of  facts,  which  does  not  show  that  the  defendant  was  in 
possession  when  the  writ  was  issued,  or  any  time  thereafter." 

§  73  e.  A  verdict  for  the  defendant  is  in  effect  a  finding  that 
the  plaintiff  unlawfully  took  the  property,  that  the  defendant  is 
entitled  to  possession,  and  that  there  has  been  a  breach  of  the 
bond,  in  that  the  action  has  not  been  prosecuted  with  efiect.*^ 

§  73/.  Upon  the  issues  of  non  cepit  and  property  in  the  defend- 
ant, a  verdict  that  the  plaintiff  is  entitled  to  the  property  is 
fatally  defective.^ 

§  73  g.  Where  the  defendant  took  the  property  upon  an  execu- 
tion against  it,  and  pleads  non  cepit  and  property  in  A  ;  a  verdict 

1   Williams  v.  Beede,  15  N.  H.  483.  6  ciark  v.  Heck,  17  Ind.  281. 

-  Hotclikiss  V.  Ashley,  44  Verm.  l'J5.  ^  McCormick  v.  McCorniick,  40  Miss. 

3  1  Mill.  134.  760. 

*  Wood  V.  Orser,  25  N.  Y.  (11  Sinitli)  »  wheat  v.  Cattcrlin,  23  Ind.  85. 
348.  9  Smith  v.  Houston,  25  Ark.  183. 

*  Hunt  V.  Bennett,  4  Greene  (Iowa), 
612. 


98 


REPLEVIN. 


[book  I. 


of  not  guilty,  and  the  right  of  special  property  in  the  defendant, 
is  erroneous.^ 

§  74.  A  verdict  and  judgment  in  replevin  are  conclusive  only 
as  between  the  parties  and  their  privies.^  Thus,  although  the 
defendant  is  at  liberty  to  plead  property  in  a  third  person,  such 
third  person  is  not  bound  by  the  verdict,  unless  he  is  in  some 
way  connected  with  the  defendant.^  And,  between  the  parties, 
a  verdict  of  non  cepit,  and  judgment  for  return,  are  not  conclusive 
upon  the  question  of  property.  They  only  show,  that  for  some 
cause  the  defendant  is  entitled  to  possession.'^ 

§  75.  The  subject  of  damages  in  replevin,  awarded  either  by 
verdict  or  judgment,  is  very  generally  regulated  by  express  stat- 
ute. Independently  of  statute,  inasmuch  as  the  plaintiff  is  put  in 
possession  of  the  property  by  service  of  the  writ,  he  of  course 
cannot  recover  the  value  of  it  by  way  of  damages.  On  the 
other  hand,  the  defendant,  as  will  be  hereafter  explained,  if  he 
prevail,  has  judgment  for  a  return  of  the  property,  and  therefore 
recovers  damages  merely  for  its  seizure  by  the  writ  and  subse- 
quent detention.  It  is,  however,  sometimes  stated,  in  general 
terms,  that  the  plaintiff  is  entitled  to  damages,  for  the  caption 
and  detention  only  ;  but  the  defendant  to  the  value  of  the  prop- 
erty.^ (a) 


1  Hanford  v.  Obrecht,  49  lU.  146. 
'^  Edwards  v.  McCurdy,  13  III.  496. 
3  lb. 


*  Moulton  V.  Smith,  32  Maine,  406. 
5  Messer  v.  Bailey,  11  Post.  9. 


(a)  Upon  this  ground  it  was  held,  that 
defendants  in  replevin  cannot  stay  execu- 
tion by  giving  bond  to  review.  The 
argument  urged  against  it  was,  that  in 
replevin  damages  were  always  a  subject  of 
minor  consideration,  and  the  goods  were 
the  main  object  of  the  suit ;  and  the  case 
was  hkened  to  that  of  real  actions,  where 
a  review  bond  is  never  taken  to  stay  exe- 
cution for  the  costs.  Luckfast  v.  Kane,  7 
Mass.  500. 

In  Pennsylvania,  upon  plea  of  property, 
a  verdict  for  the  plaintiff'  will  be  for  the 
value  and  damages  for  detention.  Warner 
V.  Aughenbaugh,  15  S.  &  R.  9  ;  McDonald 
V.  Scaife,  11  Penn.  381. 

In  New  York,  in  replevin  -by  a  party 
having  a  lien,  the  plaintiff,  as  in  other 
actions  of  replevin,  is  entitled  to  a  return  ; 
or,  if  a  return  cannot  be  had,  to  the  value. 
Dows  V.  Rush,  28  Barb.  157. 

In  Ohio,  in  suits  for  specific  property 
and  damages  for  the  detention,  the  statute 
provides  that,  if  the  plaintiff  does  not  give 


a  bond,  the  sheriff  shall  return  the  prop- 
erty to  the  defendant,  and  that  the  plain- 
tiff shall  then  be  entitled  to  such  damages 
as  are  proper.  Under  this  act  the  plaintiff 
may  have  damages  for  the  value,  without 
amendment,  upon  his  original  petition, 
which  asks  only  damages  for  the  deten- 
tion. Pugh  V.  Calloway,  10  Ohio  (N.  S.), 
488. 

In  Missouri,  in  actions  .for  the  recovery 
of  specific  property,  it  was  held  that  the 
plaintiff,  at  his  option,  might  take  the  pro- 
perty or  its  value ;  and,  if  slaves  were  the 
subject  of  the  suit,  and  after  its  commence- 
ment they  died  in  the  defendant's  posses- 
sion, without  fault  or  negligence  on  his 
part,  he  would  not  be  liable  therefor  ;  but, 
if  the  death  were  occasioned  by  his  fault, 
or  the  slaves  were  sold  by  him  to  another, 
the  rule  might  be  different.  Pope  v. 
Jenkins,  30  Mis.  528. 

In  Mississippi,  after  the  jury  have  ren- 
dered a  verdict  for  the  plaintiff,  and  as- 
sessed the  entire  value  of  the  ijroperty,  and 


CH.   VII.] 


DAMAGES. 


99 


§  76.  Independently  of  statutory  regulation,  "  damages  must 
be  assessed  (for  the  defendant)  according  to  the  magnitude  of 
the  injury,  agreeably  to  the  rule  of  the  common  law."  ^  (a) 


1  Per  Parsons,  C.  J.,  Bruce  v.  Learned,  4  Mass.  61G. 


have  been  discliarpcd,  it  is  improper  and 
erronc'DUs  to  recall  tlicni  on  the  next  day, 
for  the  i)urpose  of  assessinj^  the  value  of 
the  separate  articles  replevied.  Dearing 
V.  Ford,  13  S.  &.  M.  'iG'J.  The  value  of 
each  distinct  article  must  be  assessed  in 
the  verdict.  A  verdict,  valid  in  otlier  re- 
spects, may  be  remanded  to  the  inferior 
court,  witli  order  to  award  a  writ  of  in- 
quiry, to  ascertain  such  separate  values. 
Duane  i-.  Hilzheim,  13  S.  &  M.  33G 

In  Delaware,  in  replevin  in  the  det'nutit, 
the  iilaintitt"  can  recover  damages  for  the 
detention  only  until  replevin,  though  he 
should  ])rove  the  property  to  be  still  in 
the  defendant's  possession.  Truitt  v.  lle- 
vill,  4  Harr.  71. 

In  Illinois,  the  plaintiff' may  recover  the 
value  of  the  use  of  the  property  while  it  is 
detained.  But  not  for  tlie  natural  dejjre- 
ciation  in  value  of  a  horse  while  in  the 
possession  of  the  defendant.  But  the  de- 
fendant is  bound  to  take  reasonable  care 
of  the  property,  and  is  liable  for  anj'  de- 
fault in  performing  that  duty.  Odell  v. 
Hole,  26  111.  204.  When  the  plaintitT  is 
nonsuited,  and  the  court  orders  a  return, 
and  damages  are  assessed  for  detention  ; 
evidence  of  such  assessment  is  not  admis- 
sible in  an  action  on  the  bond.  While, 
under  the  general  breach  assigned  upon 
the  bond,  evidence  of  damages  suffered  by 
the  detention  prior  to  the  order  of  rctorno 
liahemlo  would  have  been  admissible;  yet 
it  must  have  lieen  evidence  of  what  tlie 
damages  in  fact  were.  Shepard  v.  But- 
terfield,  41  111.  7G. 

In  Wisconsin,  in  an  action  of  replevin 
before  a  justice  of  the  peace,  the  jury 
rendered  a  verdict  for  the  plaintiff'  for  six 
cents  damages  for  the  detention,  and  found 
the  value  of  the  iJrojK'rty  to  be  fifteen  dol- 
lars. The  justice  rendered  judgment  for 
delivery  to  the  plaintiff',  and  for  six  cents 
damages  with  costs,  llelil,  tlie  value  of 
the  property  as  found  by  the  jury  consti- 
tuted, a  part  of  the  recovery,  as  if  the 
plaintiff' had  taken  juilgment  for  the  value 
insteail  of  a  return  ;  and,  the  whole  re- 
covery having  been  for  more  than  fifteen 
dollars,  an  appeal  would  lie  to  the  Circuit 
Court.    Inman  v.  (iower,  3  Chand.  1G2. 

In  New  York,  where  the  property  has 
been  replevied,  and  delivered  to  the  i)lain- 
tiff",  he  caimot  elect  to  take  judgment  for 
the  value.  Rockwell  '•.  Saunders,  T.t  Barb. 
473.     In  replevin  against  a  sheriff" for  flour 


taken  by  liim  on  execution,  on  his  electing 
to  take  judgnu'Ut  for  its  value,  he  will  Ije 
hmited  to  the  value  at  the  connnencement 
of  the  suit,  witli  interest  from  that  time  ; 
although  it  appear  that  flour,  between 
that  period  and  the  trial,  was  worth  about 
double  its  then  nuirket  price.  He  cannot 
adil,  as  danuiges,  the  diff'erence  between 
the  value  at  the  rei)levin  and  the  highest 
subsequent  market  value  up  to  the  time 
of  the  trial.  Suydam  (.-.Jenkins,  3  Sandf. 
614.  Under  a  complaint,  alleging  that 
tlie  defendant  wrongfully  took  and  de- 
tained goods,  to  the  damage  of  the  [)lain- 
tiff'  §5,000,  but  without  an}'  allegation  of 
special  damage;  the  i)laintiff'niay  recover 
damage  from  depreciation  resulting  by 
reason  of  the  lapse  of  time.  Young  v. 
Willet,  8  Bosw.  486.  Evidence  is  admis- 
sible, tliat  the  goods  depreciated  from 
change  in  the  market  value,  or  from  decay 
arising  fr(un  inherent  causes,  and  not  from 
any  neglect  on  the  part  of  the  defendants. 
lb.  In  an  action  for  canal-boats,  evidence 
of  their  value  a  year  previous  to  the  con- 
version is  admissible,  if  supplemented  by 
evidence  that  they  were  in  tlie  same 
condition  wlien  converted.  Brewster  v. 
Sillinum,  38  N.  Y.  423.  Evidence  is  inad- 
missible of  an  offer  to  return  one  of  the 
boats,  not  shown  to  be  made  at  the  time 
when  the  boat  was  demanded,  or  accom- 
panied by  an  attempt  to  deliver  the  boat. 
It  is  no  ground  to  dismiss  the  action  as  to 
some  of  the  defendants,  that  the  jilaintiff 
fails  to  introduce  evidence  sufficient  to 
j)rove  their  liability,  when  they  in  tiieir 
answer  jointly  justify  the  taking  by  virtue 
of  an  attachment,  which  they  produced  in 
evidence,  issued  in  favor  of  all.     lb. 

((()  In  Massachusetts  it  was  held,  un- 
der an  earl}'  statute,  that,  if  the  ])laintifE 
be  non-suited,  the  defendant  shall  recover 
six  ]ier  cent,  damages  on  the  penal  sum  of 
the  bond,  as  well  where  the  taking  was 
on  mesne  process  as  on  execution.  The 
court  remark  :  "If  tlie  plaintiff  attaching 
fails  to  support  liis  action,  the  officer  is 
then  accountable  to  the  defendant  in  that 
action  wliose  goods  he  had  attached,  .  .  . 
and  is  to  pay  over  to  him  the  six  i>er  cent, 
damages  recovered,  and  redeliver  to  liim 
the  goods.  In  the  other  case  (that  of  an 
execution)  the  officer  (as  the  case  may 
be)  is  accoimtable  to  both  the  creditor  and 
debtor:  to  the  creditor,  to  the  amount  of 
his  judgment;  and  to  the  debtor,  for  what 


100 


REPLEVIN. 


[book  T. 


§  77.  The  jury  may  find  one  part  of  the  property  to  belong  to 
tlie  plaintiff,  and  the  other  part  to  the  defendant.^     And  where 

1  O'Keefe  v.  Kellogg,  15  111.  347  ;  Philips  v.  Harriss,  3  J.  J.  Mar.  121. 


may  remain  in  his  (the  officer's)  hands 
after  satisfying  the  creditor.  Tlie  officer 
is  merely  a  trustee,  and,  after  indemni- 
fying himself,  is  accountable  over.  The 
plaintiff  in  replevin,  who  fails  to  support 
his  action,  and  is  therefore  proved  to  be  a 
wrong-doer,  has  nothing  to  do  with  the 
merits  of  the  claim  of  the  attaching  cred- 
itor. And  the  damage  to  the  real  owner 
of  the  goods  is  precisely  the  same  in  cases 
of  attachment  as  in  those  of  taking  on 
execution."  Pike  v.  Huckins,  1  Mass. 
421.  Where  goods  not  held  under  legal 
process  are  replevied,  and  the  plaintiff 
becomes  nonsuit,  and  a  return  is  awarded, 
the  defendant  recovers  for  damages  inter- 
est at  six  per  cent,  on  the  value  of  the 
goods,  from  service  of  the  writ  to  the 
entry  of  judgment,  although  the  statute 
would  seem  to  provide  that  measure  of 
damages  only  in  the  two  cases  where  the 
action  is  not  entered,  and  where  an  issue 
is  tried.  Wood  v.  Braynard,  9  Pick.  322. 
In  a  subsequent  case  it  was  decided,  that 
the  statute  of  replevins  (1789,  c.  2fi)  had 
prescribed  six  per  cent,  on  the  bond  as  the 
measure  of  damages,  when  the  plaintiff 
shall  fail  to  prosecute  his  suit,  and  when 
goods  taken  in  execution  are  unlawfully 
replevied  ;  in  all  other  cases  his  damages 
are  left  to  be  assessed  according  to  the 
magnitude  of  the  injury.  The  court  re- 
marked :  "  It  may  be  within  the  equity  of 
this  last  case  (that  of  an  execution)  if  the 
plaintiff  shall  have  unlawfully  replevied 
goods  duly  attached,  ...  if  execution  has 
been  thereby  delaved."  Bruce  v.  Learned, 
4  Mass.  614;  per"  Parsons,  C.  J.,  ib.  616. 
After  a  debtor's  goods  were  seized  on  a 
writ  of  attachment,  and  also  on  an  execu- 
tion, he  was  discharged  under  the  United 
States  bankrupt  law  of  1841.  Tlie  goods 
were  replevied,  and  the  defendant  in  re- 
plevin obtained  judgment  for  a  return, 
and  brought  a  suit  on  the  bond.  Held, 
he  was  entitled  to  recover,  as  damages, 
the  full  value  of  the  goods,  unless  shown 
to  be  unnecessary  to  satisfy  the  execution. 
Parker  v.  Simonds,  8  Met.  205.  In  an- 
other case,  turning  upon  the  validity  and 
effijct  of  a  sale,  it  was  held,  that  tlie 
defendant  was  entitled  to  recover  as  dam- 
ages the  value  of  the  property  replevied, 
with  interest  from  the  service  of  the  writ 
of  replevin  to  the  rendition  of  judgment, 
no  special  damage  being  shown ;  and  that 
the  valuation  of  the  oil  in  the  writ  was 
prima  facie  evidence  of  the  true  value. 
The  court  remark  :  "  The  case  is  not  with- 


in the  letter  nor  the  equity  of  tlie  statute 
which  gives  a  per  cent,  on  the  ])enalty  of 
the  bond,  and  requires  that  such  penalty 
be  given  for  double  the  value  of  the  goods  ; 
that  applies  to  cases  where  the  process  of 
law  has  been  delayed  by  the  replevin." 
Barnes  v.  Bartlett,  15  Pick.  71 ;  per  Sliaw, 
C.  J.,  78.  In  replevin  of  securities  for 
payment  of  money,  bearing  interest,  a 
verdict  for  the  defendant  will  entitle  him 
to  nominal  damages  only,  where  it  does 
not  appear  that  he  has  sustained  actual 
loss.  Bartlett  v.  Brickett,  14  Allen,  62. 
In  replevin  against  a  claimant  of  the 
property  under  a  purchase,  the  defendant 
may  show,  as  damages,  his  expenditures 
in  improving  the  property.  Veazie  v. 
Somerby,  5  Allen,  280.  If,  in  replevying 
a  sail-boat,  the  officer  has  also  taken 
the  furniture  on  board  of  her,  which 
belonged  to  the  defendant,  and  has  re- 
moved it  to  another  town  ;  evidence  is 
incompetent  to  show  that,  at  the  appraisal, 
several  days  after  the  taking,  he  offered 
to  return  it  to  the  defendant's  agent, 
without  the  defendant's  knowledge.    Ib. 

In  New  Hampshire,  the  defendant  plead- 
ed property  in  B,  that  B  was  indebted  to  A, 
and  that  lie  attached  the  property.  The 
plaintiff  replied,  1,  property  in  himself;  2, 
that  B  was  not  indebted  to  A  ;  3,  that  the 
defendant  did  not  attach  the  property  on 
a  writ  in  favor  of  A  against  B,  and  issues 
were  joined.  Held,  1,  the  only  material 
issue  was  upon  the  plaintiff's  property  ;  2, 
that  the  allegations,  that  the  goods  were 
the  property  of  B,  that  B  owed  A,  and 
that  the  defendant  attached  the  goods  on 
A's  writ,  were  merely  inducement,  and 
not  traversable ;  and  that  tlie  issues  joined 
on  those  matters  were  immaterial ;  3,  that, 
on  these  pleadings,  if  the  issues  were 
found  in  his  favor,  the  defendant  was  at 
common  law  entitled  to  judgment  for  a 
return,  without  an  avowry  or  conusance, 
or  any  suggestion  of  that  nature  ;  4,  that 
in  this  state  he  was  entitled  to  a  judgment 
for  damages  instead  of  a  return ;  and,  5, 
that  those  damages  were  not  necessarily 
limited  to  the  value  of  the  property  and 
interest.  Dickinson  r.  Lovell,  35  N.  H.  9. 
An  omission  of  the  jury  to  assess  damages 
for  the  plaintiff,  who  prevails  on  the  ques- 
tion of  title,  is  no  ground  for  setting  aside 
the  verdict.  M'Kean  v.  Cutler,  48  N.  H. 
370. 

In  Maine,  in  case  of  replevin  of  goods 
taken  by  a  collector  of  taxes,  if  judgment 
is  rendered  for  the  defendant  in  replevin. 


CH.  VII.] 


DAMAGES. 


101 


issue  is  joined  upon  the  plaintiff's  property,  and  the  jury  find  the 
property  of  part  in   tlie   plaintiff  and  of  part  not ;  each  party  is 


he  is  entitled  to  six  per  cent,  damages  on 
tlie  replevin  bond.  Dore  r.  Hijiiit,  :i  Sliep. 
20.  Wliere  the  value  is  slated  in  tlie 
writ,  the  plaintifl'  cannot  except  that  tlie 
jury  sliouliS  have  found  the  value,  if  he 
did  not  recjuest  instructions  to  that  efi'ect. 
Heald  r.  Cushinan,  MO  Maine,  lt>l.  In  an 
action  of  replevin,  suhniitteil  on  (juestions 
of  law,  without  any  stipulation  as  to  the 
allowance  of  damages;  the  court,  at  an- 
other term,  after  judgment  of  nonsuit  and 
return,  has  no  power  to  assess  the  defend- 
ant's damages,  or  send  the  question  to  a 
jury.  Dillingham  v.  iSmitli,  '62  Maine, 
182. 

In  New  York,  in  an  early  case,  it  was 
held,  that,  where  the  defendant  makes 
avowry,  justification,  or  cognizance,  if 
found  for  him,  or  if  the  plaintitf  be  non- 
suited, or  otherwise  barred,  tlie  defendant 
is  entitled  to  damages  under  the  act,  sess. 
36,  c.  <JG,  §4(1  ^"-  li-  L.  y44),and  the 
decreivse  in  value  from  the  time  of  tlie  re- 
plevin, and  interest  on  the  entire  value, 
are  a  proper  measure  of  damages.  Rowley 
V.  Gibbs,  14  Johns.  385.  An  inquisition, 
assessing  the  damages  of  a  defendant  after 
discontinuance  of  the  suit,  will  not  be  set 
aside,  because  the  damages  are  excessive, 
where  the  proceeding  by  tiie  plaintiff  is 
vexatious,  if  the  rules  of  law  have  been 
observed  by  the  jury.  And  a  jury,  in 
such  case,  may  give  smart-money.  Cable 
V.  Dakin,  20  Wend.  172.  When,  in  an 
action  to  recover  possession,  the  property 
has  been  delivered  to  the  jjlaintitl",  and 
the  defendant  claims  a  return,  he  is  not 
entitled  to  judgment  for  the  value  or  the 
return,  as  he  shall  elect ;  but  the  jury 
should  be  instrucled  to  find  for  the  defend- 
ant generally,  and  to  assess  the  value  of 
the  property,  together  with  the  damages 
for  the  taking  and  withholding  thereof. 
It  is  the  right  of  the  plaintiff  to  have  such 
damages  assessed,  and  judgment  should  be 
accordingly.  He  also  has  the  right  to  re- 
turn the  property,  instead  of  i)aying  its 
value,  which  can  only  be  required  of  him 
in  case  a  return  cannot  be  had.  If  the 
defendant  will  waive  tlie  d;niiages  for 
taking  and  withholding,  judgment  may  be 
entered  for  him  for  a  return  of  the  proi)erty, 
if  a  return  can  be  had;  and,  if  not,  then 
that  the  defendant  recover  the  value  as 
assessed  by  the  jury,  (ilann  r.  Vounglove, 
27  Barb.  480.  When  the  defendant  who 
recovers  in  replevin  elects  to  take  judg- 
ment for  the  value  of  the  goods,  lie  is 
entitled  to  damages  equally  as  if  he  had 
elected  to  have  a  return.  The  value  is 
that  at  the  time  of  the  replevin,  not  at  the 


time  when  he  makes  his  election.  If  such 
value  be  an  insufKcient  redress,  the  defi- 
ciency may  be  made  good  in  the  estimate 
of  damages.  The  measure  of  damages  is 
the  same  as  in  trover.  Suydam  v.  Jenkins, 
3  Saiidf  U14.  A  judgment  for  the  value 
of  the  ])r()i)erty  only,  with  damages  and 
costs,  though  it  is  not  in  the  alternative 
form  prescribed  by  Code,  §  277,  is  not  void, 
but  is  valid  until  reversed  or  amen<ied. 
Gallarati  v.  Orser,  4  Bosw.  94.  Where 
the  interest  of  the  party  entitled  to  posses- 
sion is  limited,  and  less  than  the  actual 
value  of  the  jiroperty,  the  jury  should  be 
directed  to  assess  the  value,  as  against  tlie 
actual  owner,  only  at  a  sum  equivalent  to 
such  interest.  Khoads  i'.  Woods,  41  15arb. 
471.  In  an  action  to  recover  possession 
of  specific  personal  property,  or  the  value, 
in  case  a  return  cannot  be  had,  and  for 
damages  ;  the  plaintiff  may  recover  <lain- 
ages  arising  from  depreciation  of  the  goods 
during  the  wrongful  detention  ;  whether 
the  decrease  arises  from  the  defendant's 
act  or  default,  or  from  other  causes.  If 
the  plaintiff  does  not  resort  to  proceedings 
of  claim  and  deliver)',  or  if,  after  he  has 
resorted  to  them,  the  defendant  reclaims 
the  goods  by  giving  bond,  and  retains 
possession,  the  jury,  in  assessing  the  value, 
should  find  the  value  at  the  time  of  the 
verdict,  and  its  depreciation  since  the  time 
of  the  taking,  from  any  causes  jiroveil  by 
the  evidence.  Interest  should  be  allowed 
on  the  whole  amount.  The  amount  of 
depreciation  and  the  interest  will  form  the 
damages  ;  and  the  judgment  will  be  for 
recovery  of  possession  and  the  sum  founil 
for  damages,  or,  if  delivery  cannot  be  had, 
for  the  value  at  the  time  of  the  verdict, 
and  the  damages.  Where,  however,  the 
jur}'  found  the  value  at  the  time  of  taking, 
which  exceeded  the  value  alleged  in  the 
complaint,  and  also  found  the  depreciation 
and  the  interest,  and  the  plaintiff,  by 
consenting  to  a  reduction  of  the  verdict, 
had  procured  judgment  to  be  entered  in  a 
form  which  produced  the  same  result  as 
if  the  verdict  had  been  in  a(,'cordance  with 
the  rule  above  stated  ;  held,  that  the 
judgment  must  be  affirmed.  Young  i'. 
Willet,  8  Bosw.  486. 

In  Pennsylvania,  the  jury  are  not  con- 
fined, in  assessing  damages,  to  interest  on 
the  value  of  the  property,  but  may  give 
more,  if  necessary  to  compensate  the 
defendant.  McCai)e  r.  Morehead,  1  W. 
&  S.  513.  The  defendant,  on  a  plea  of 
property,  is  not  entitled  to  specific  dam- 
ages for  an  interrujition  of  business.  lb. 
Where  goods  are  delivered  to  the  plaintiff 


102 


REPLEVIN. 


[book 


entitled  to   damages  and  costs.^     Where  the  verdict  is  for  both 
parties ;  for   one,  damages    and    costs,  as    to  that    portion    upon 

1  Powell  V.  Hinsdale,  5  Mass.  343. 


on  a  claim  of  proper tj',  and  the  plea  of 
property  iri  found  for  tlie  defendant ;  the 
damages  for  detention  consist  of  the  in- 
terest on  tlie  value  of  tlie  goods  when 
taken,  from  the  time  of  the  taking  until 
judgment.     But  if  the  writ  was  sued  out 
fraiuhilently,  and  witliout  color  of  riglit, 
the  jur}'  may  give  exemplary  damages,  as 
in  case  of  a  wanton  and  malicious  trespass. 
lb.      A   plaintiff   in    replevin   recovered 
judgment  against  the  defendant,  who  had 
retained  tlie  goods  and  given  bond,  and 
issued  liis  execution  ;  wliereupon  it  was 
agreed  tliat  the  goods  sliould  be  appraised 
and  taken  by  the  plaintiff  at  the  appraise- 
ment.    Tlie  valuation  was  not  thus  made, 
and  the  goods  were  sold  by  the  sheriff  for 
an  amount  much  below  that  of  an  apprais- 
al by  persons  selected  by  the  defendant 
alone,  who  then  applied  to  the  court  for 
an  issue,  that  he  might  have  credit  for  the 
difference  on  the  replevin  judgment.     On 
trial  of  an  issue  awarded  to  ascertain  what 
credit  he  was  entitled  to,  if  any  ;  held,  it 
was  incompetent  for  the  defendant  to  offer 
evidence  of  the  value  as  estimated  by  his 
own  appraisers,  or  proved  by  the  witnesses 
in  the  replevin  suit,  or  the  prices  obtained 
by  the  officer,  this  evidence  not  showing 
any  credit  upon  the  judgment,  but  only  a 
claim  for  damages  for  breach  of  agree- 
ment ;  not  a  subject  of  set-off,  but  only  of 
an  action  for  damages.     Kennedy  v.  Ken- 
nedy, 41  Penn.  185.    The  court  remarked, 
"  Siich  unsuccessful  attempts  to  control 
the  final  process  of  the  court,  and  to  pay  a 
judgment  by  damages  for  breach  of  an 
alleged  contract,  vuicertain  in  its  character, 
and  in  one  respect  practically  impossible, 
should  be  frowned  upon  by  the  courts. 
Their  tendency  is  to  foster  litigation,  and 
to  make  it  interminable."     Per  Read,  J., 
ib.  187.     The  primary  purpose  of  replevin 
is  to  recover  the  property  in  specie ;  not 
its  value.     The  defendant,  mistaking  his 
line,  cut  logs  on  an  adjacent  tract  belong- 
ing to  the  plaintiff,  and  drove  them  to  a 
boom,  where  the  plaintiff  replevied  them. 
Held,  as  the  trespass  was  inadvertent,  the 
damages  were  the  value  of  the  logs  at  the 
boom,  less  the  cost  of  cutting,  hauling, 
and  driving  them  there.    Herdic  v.  Young, 
55  Penn.  176.     Exemplary  damages  can- 
not be  given  in  replevin  for  the  deten- 
tion  of  a   mare   for   two   hours   without 
wantonness    or    injury.       Cunimings    i\ 
Gann,  52  Penn.  484.    ( Where  the  plaintiff, 
in  replevin  for  a  horse,  gave  bond,  and  the 
defendant  retook  the  property  upon  secu- 
rity, and  no  ground  for  exemplary  dam- 


ages was  shown  ;  held,  the  plaintiff  could 
not  recover  for  the  use  of  the  horse.  Twi- 
nan  v.  Swart,  4  Lans.  263.)  Damages  be- 
yond the  value  of  the  property  may  be 
given,  where  the  taking  was  accompanied 
with  wrong  and  outrage,  though  the  decla- 
ration contain  no  count  claiming  special 
damage,  nor  any  averment  that  the  taking 
was  accompanied  with  circumstances  of 
outrage  and  (.ppression.  But  consequen- 
tial damages,  not  necessarily  or  naturally 
resulting  from  the  tortious  act,  must  be 
specially  claimed.  Schofield  v.  Ferrers, 
46  Penn.  488. 

In  Delaware,  judgment  on  a  discontin- 
uance in  replevin  is  for  costs  only,  and 
not  for  a  return.  Mcllvaine  v.  Holland,  5 
Harring.  226. 

In  Michigan,  where  in  the  court  below 
there  was  no  evidence  submitted  as  to  the 
value  of  the  property,  and  the  court  award- 
ed more  than  nominal  damages  ;  the  judg- 
ment was  held  erroneous.  Phenix  v. 
Clark,  2  Mich.  327.  Under  the  Michigan 
statutes  on  replevin  (Rev.  Sts.  523),  the 
Circuit  Court  has  no  power,  in  an  action 
brought  before  it  from  a  justices'  court,  to 
impanel  a  jury  to  assess  the  value  of  the 
property.  The  statute  (Rev.  Sts.  525, 
§  61)  applies  only  to  actions  originally 
brought  in  that  court.  People  i'.  Judges, 
&c.  1  Doug.  302.  The  court,  however, 
have  power,  it  seems,  under  §  170  and 
§  135  of  the  justices'  act  of  1841  (Laws 
1841,  p.  81)  to  award  a  restitution.  Ib. 
But  the  motion  is  too  late  if  made  at  a 
term  subsequent  to  the  one  in  which  the 
judgment  brought  from  the  justices'  court 
was  reversed,  the  parties  then  being  out 
of  court.  Ib.  Where  a  plaintiff  in  re- 
plevin, before  a  justice  of  the  peace,  has 
judgment  of  discontinuance  rendered 
against  him  ;  it  is  the  duty  of  the  justice 
to  assess  damages  in  favor  of  the  defend- 
ant when  he  waives  a  return.  People  v. 
Tripp,  15  Mich.  518.  Where  the  property 
has  been  delivered  to  the  plaintiff,  and  he 
recovers  a  verdict  for  it,  the  statute  gives 
no  authority  either  to  tlie  court  or  jury  to 
assess  the  value.  Merrill  v.  Butler,  18 
Mich.  294.  A  defendant,  who  recovers 
judgment  by  nonsuit,  and  takes  judgment 
for  the  value,  may,  under  a  notice  of  trial, 
have  the  value  assessed  by  the  court. 
Pearsons  v.  Eaton,  18  Mich.  79.  A  party 
setting  up  a  special  property  in  chattels 
replevied,  who  waives  a  return,  cannot 
recover  in  damages  more  than  the  amount 
of  his  special  interest.  Weber  v.  Henry, 
16  Mich.  399. 


CH.  VII.] 


DAMAGES. 


103 


which   he  maintained  his   replevin ;  and   for  tlie   other,   for  the 
return   of  the  property  iraproi)erly  taken  by  the  writ,  damages 


In  Illinois,  wlierc  there  is  a  judgment  of 
retonid,  tlie  value  of  the  use  of  the  prop- 
erty during  detention  is  the  true  measure 
of  damages,  not  sjieculative  or  exj)ected 
profits  or  smart  money.  Damages  may 
be  assessed  by  tiie  court,  or  a  jury  may 
be  called.  Butler  r.  Mehrling,  lo  ll'l.  488. 
The  statute  of  Illinois  concerning  jtractice 
has  no  reference  to  the  assessment  of 
damages  in  the  action  of  replevin,  but  ap- 
plies to  a  suit  on  the  bond.  Campbell  v. 
Head,  13  111.  122. 

In  Missouri,  on  a  nonsuit,  the  defendant 
is  entitled  to  the  same  judgment  and  dam- 
ages as  if  he  had  recovered  a  verdict. 
Smith  V.  Winston,  10  Mis.  299.  If  the 
plaintiff  fails  to  prosecute  his  suit  with 
effect,  the  assessment  of  damages  is  im- 
perative, and  may  be  made  by  the  court 
if  neither  party  oljjects.  Reeil  v.  Wilson, 
13  Mis.  28.  Where  a  slave  had  been  de- 
tained by  virtue  of  a  writ  of  replevin,  a 
judgment  for  his  value,  in  damages,  for 
the  defendant,  would  be  erroneous.  Law- 
rence r.  Lawrence,  24  Mis.  209.  A  ver- 
dict for  tlie  defendant,  in  an  action  for 
possession,  where  tiie  plaintitt' receives  the 
property  and  gives  bond,  should  regularly 
assess  both  the  value  and  the  damages. 
Hohcnthal  v.  Watson,  28  Mis.  360.  A 
defendant  having  only  a  special  interest 
recovers  the  full  value  of  the  i)roperty. 
Fallon  V.  Manning,  35  Mis.  27.  The 
measure  of  damages  is  tlie  value  of  the 
property  at  the  time  of  seizure,  with  in- 
terest at  the  rate  of  six  per  cent,  per  an- 
num until  the  time  of  trial.  Woodburn 
V.  Cogdal,  39  Mis.  222.  When  judgment 
is  rendered  for  the  defendant,  damages 
must  be  assessed  for  tiie  whole  value  of 
the  propert}'.     Frei  c.  Vogel,  40  Mis.  149. 

In  Minnesota,  in  an  action  for  the  return 
of  property,  the  respondent  cannot  take 
more  damages  for  tlie  detention  than  he 
claims  by  his  answer;  if  he  desires  judg- 
ment for  the  value  of  "he  goods,  in  addi- 
tion to  damages,  in  case  the  goods  are  not 
returned,  he  should  have  the  jury  assess 
the  value.  Eaton  r.  Caldwell,  3  Min.  134. 
The  respondent  claimed  fifty  dollars  dam- 
ages ;  the  jury  found  for  the  respondent 
with  seventy-five  dollars  damages.  Held, 
that  the  verdict  would  authorize  a  judg- 
ment for  a  return  and  titty  dollars,  if  ho 
remitted  the  excess  ;  but  that  it  would 
not  authorize  a  judgment  for  a  return,  or 
seventy-five  dollars,  as  the  value  of  the 
goods,  lb.  In  the  absence  of  fraud, 
malice,  negligence,  or  o])pression,  the 
measure  of  damages  for  an  unlawful  tak- 
ing is  the  value  of  the  property  at  the 


time  it  was  taken,  with  interest  to  the 
time  of  trial.  Berthold  v.  Fox,  13  Min. 
501. 

In  Indiana,  the  defendant  has  tlie  riglit, 
under  Kev.  Sts.  1843,  §  182,  p.  702,  to 
show  title,  and  to  have  judgment  in  his 
favor,  and  damages  assessed  for  the  de- 
tention, by  writ  of  incjuiry.  Mikesill  v. 
Chancy,  (J  Ind.  52.  Where  a  plaintiff, 
after  closing  his  evidence,  sutlers  a  non- 
suit, the  refusal  of  such  judgment  by  the 
court,  and  the  entry  of  ajuilgment  in  favor 
of  the  defeiiilant  for  costs  only,  is  error. 
lb.  If  the  jury  return  a  general  verdict 
for  the  defendant,  they  may  be  remanded 
by  the  court,  with  instructions  to  find  the 
value  of  the  property,  and  the  damages 
for  its  detention.  Noble  v.  Epperly,  6 
Ind.  4tJ8.  The  damages  in  such  case  must 
depend  on  the  nature  of  the  defendant's 
interest,  whether  that  of  a  bailee  or  abso- 
lute owner,  the  time  he  has  been  deprived 
of  it,  the  character  of  the  property,  «Sic. 
lb.  Where  a  jierson.  as  a  means  of  get- 
ting possession  of  lumber  loaded  on  cars 
under  a  contract  of  sale  without  paying 
for  it,  brings  an  unsuccessful  replevin 
against  the  vendor  ;  in  a  suit  on  the  bond, 
the  jury  may  give  as  damages  the  value 
of  all  the  lumber,  though  its  amount  was 
under-estimated  in  the  bonil,  with  interest 
during  its  detention.  iStory  v.  O'Dea,  23 
Ind.  326. 

In  Tennessee,  where  A  sued  B  in  re- 
plevin, under  the  Tennessee  Act  of  1846, 
c.  05,  for  several  slaves,  and  a  verdict  and 
judgment  were  rendered  for  their  aggre- 
gate value  :  held  erroneous  ;  that,  if  all 
the  property  replevied  was  alike  in  its 
character,  and  not  possessed  of  a  distinct 
separate  quality,  and  was  so  described  in 
the  proceedings,  then  a  general  assessment 
of  value  ought  to  be  made ;  but  if  the 
articles  were  distinct  and  separate,  having 
no  identity  of  character,  then  the  value  of 
each  should  be  assessed.  And  this,  in 
order  that  the  jiarty  should  have  his  right 
to  deliver  what  he  could,  and  to  jiay  for 
that  which  he  could  not.  Tickett  v. 
Bridges,  10  Humph.  171.  The  Tennessee 
Act  of  1840,  c.  65,  passed  to  regulate  the 
proceedings  in  replevin,  directs,  that,  in 
w-ase  the  plaintiff,  who  has  seized  the  jirop- 
erty  by  his  writ,  and  taken  it  out  of  the 
possession  of  the  defendant,  shall  enter  a 
nolle  prosef/ui,  or  otherwise  tiiil  in  his  suit 
without  returning  the  jiroperty,  the  de- 
fendant may  have  a  jury  impanelled  to 
in([iure  of  tlie  value  and  (lama,L;es  for  the 
detention.  The  value  and  damages  must 
be  assessed  separately,  that  the  plaintiff 


104 


REPLEVIN. 


[book  I. 


for  its  detention,  and  costs  :  tlie  judgment  must  follow  the  ver- 
dict, and  the  costs  must  be  apportioned  according  to  equity. ^ 

§  77  a.  In  Wisconsin,  the  plaintiff  cannot  recover  damages  for 
the  loss  of  the  use  of  the  chattels,  unless  he  shows  that  he  was  in 
a  position  to  use  them.^  In  replevin  for  merchandise,  in  the 
absence  of  any  proof  of  special  damage  arising  from  its  detention 
or  rise  in  the  market,  the  measure  of  damages  is  the  actual,  not 
conjectural  or  speculative,  market  value  when  taken,  and  interest. 
It  is  error  to  ask  the  plaintiff,  testifying  in  his  own  behalf,  "  What 
was  the  fair  value  of  the  goods  taken,  in  view  of  all  the  hazards 
and  chances  of  the  business  in  which  you  were  engaged  ?  and 
what  ^vere  they  worth  to  you  in  the  ordinary  course  of  business 
in  which  you  were  then  engaged?"  and  to  admit  his  answer, 
"  I  should   say  that  fifteen  per  cent,  added  to  the  wholesale  cost 


1  Poor  V.  Woodburn,  25  Vt.  234. 


2  Bamet  v.  Douglass,  22  Wis.  464. 


may  know  what  damages  he  is  to  pay,  if 
he  returns  the  property.  Nashville,  &c. 
V.  Alexander,  10  Humph.  378.  Under  the 
Tennessee  Code,  §  3389,  where  the  jury 
find  for  the  plaintiflf",  they  must  assess  his 
damages  for  the  seizure  and  detention, 
and  judgment  will  be  rendered  therefor 
with  costs.  Parham  v.  Riley,  4  Cold.  5. 
The  value  of  the  property,  and  damages 
for  the  detention,  constitute  separate  and 
independent  items,  and  the  jury  must 
return  them  separately,  that  the  plaintiff 
may  distinctly  know  what  damages  are 
against  him  for  the  seizure,  and  what  he 
has  to  pay  provided  he  returns  the  prop- 
erty. In  case  of  separate  articles,  hav- 
ing no  identity,  the  value  ought  to  be 
assessed  for  each.  Sayers  v.  Holmes,  2 
Cold.  259.  The  defendant  may  recover  the 
value,  with  interest  also  for  depreciation. 
The  jury  may  also  allow  for  any  increase 
of  value  since  the  seizure,  also  special  or 
vindictive  damages.  Mayberry  v.  Cliffe, 
7  Cold.  117. 

In  replevin,  under  the  Mississippi  Stat- 
ute of  1842,  by  the  owner  of  a  life-estate 
against  one  who  had  taken  possession  at 
the  instance  of  the  remainder-man,  a  ver- 
dict for  the  plaintiff  for  the  full  value  of 
the  property  or  its  restoration  to  him,  with 
damages  for  detention,  is  erroneous  ;  the 
verdict  should  have  been  for  the  value  of 
the  plaintiff's  interest.  Lloyd  v.  Goodwin, 
12  S.  &  M.  223.  Objection  to  excess  of 
damages  is  not  sustainable  as  to  the  action 
of  replevin,  under  the  statute  (Hutch. 
Code,  818).  White  v.  Graves,  24  Miss. 
166.      In  replevin  for  a   slave   illegally 


levied  upon  by  an  officer,  the  pretium  af- 
fectionis  was  held  not  a  proper  element  in 
estimating  the  value.  Moseley  v.  Ander- 
son, 40  Miss.  49.  Where  a  writ  of  inquiry 
is  awarded,  the  jury  must  assess  the  value 
of  the  property,  as  well  as  the  damages 
sustained  l)y  the  defendant.  And  a  judg- 
ment for  the  defendant  should  be,  that 
the  plaintiff  and  his  sureties  on  the  bond 
restore  the  property  or  pay  him  the  value 
thereof  assessed,  and  also  the  damages 
assessed  for  wrongfully  suing  out  the 
writ.     Pearce  v.  Twichell,  41  Miss.  344. 

In  South  Carolina,  the  plaintiff  may 
recover  vindictive  damages  as  in  trespass. 
But  if  such  damages  are  claimed,  or  tor- 
tious proceedings  are  charged,  the  matter 
must  be  pleaded  specially.  Lander  v. 
Ware,  1  Strobh.  15. 

In  North  Carolina,  where  replevin  was 
brought  to  recover  possession  of  a  slave, 
in  which  an  estate  for  the  life  of  another 
was  claimed,  and  the  tenant  for  life  died 
pending  the  action  ;  the  plaintiff  was  held 
only  entitled  to  recover  the  value  of  the 
life-estate,  and  damages  for  the  detention. 
Barham  v.  Massey,  5  Ired.  152.  By 
chapter  191,  Revised  Statutes  of  North 
Carolina,  where  the  plaintiff  in  replevin  is 
nonsuited,  the  defendant  can  have  judg- 
ment for  the  tiling  replevied  and  costs,  but 
not  for  damages,  to  be  assessed  by  a  jury. 
At  common  law,  the  judgment  was  for 
the  return.  Pannell  v.  Hampton,  10  Ired. 
463. 

As  to  the  practice  in  Kentucky,  see 
Yantes  v.  Burditt,  2  Dana,  254. 


CH.  VII.]  DAMAGES.  105 

would  have  been  a  fair  return  to  me."  ^  When  the  value  of  the 
property  is  stated  in  the  affidavit,  and  not  found  by  the  justice, 
on  appeal,  the  value  so  stated  must  govern. ^ 

§  77  b.  Where  a  quantity  of  wheat,  the  property  of  the  defend- 
ant, had  been  seized  on  an  attachment,  and  he  succeeded  on  the 
trial  of  a  traverse  of  the  affidavit  for  the  writ,  and  the  property 
had  been  ordered  to  be  redelivered,  and  wheat  bore  about  the 
same  market  value  when  it  was  redelivered  as  when  it  was 
seized,  though  it  had  in  the  mean  time  advanced  considerably  ; 
held,  in  assessing  the  damages,  the  defendant  Avas  not  entitled  to 
the  benefit  of  such  advance,  without  showing  that  he  could  or 
would  have  sold  it  for  that  price.  In  such  case,  the  defendant  is 
entitled  to  damages  for  any  loss  he  has  sustained,  by  being  de- 
prived of  the  use  and  control  of  his  property  pending  the  attach- 
ment, or  for  any  injury  thereto,  or  loss  thereof,  together  with  the 
costs  incurred  by  him  on  the  trial  of  the  traverse.'^  When  mort- 
gaged chattels  have  been  lawfully  seized  under  an  attachment 
against  the  mortgagor,  the  rule  of  damages  in  replevin  by  the 
sheriff  against  the  mortgagee,  who  has  unlawfully  taken  them 
from  his  possession,  is  the  value  of  the  property  over  the  mort- 
gage debt.* 

§  77  c.  In  California,  where  delivery  cannot  be  had,  and  only 
detention  is  complained  of,  the  measure  of  damages  is  the  value 
of  the  property  at  the  place  of  detention  when  the  action  was 
commenced.^  In  Ohio,  the  "  right  and  proper  "  damages  given  by 
the  statute  to  the  defendant,  in  replevin  brought  by  the  mortgagee 
against  the  officer,  when  the  mortgage  lien  upon  tiie  property  ex- 
ceeds its  value,  is  not  the  value  of  such  property,  or  the  amount  of 
the  execution,  but  nominal  merely.^  Where  the  plaintift",  in  replevin 
against  a  sheriff  for  property  attached,  claims  under  a  sale  which 
the  defendant  has  proved  fraudulent,  the  execution  and  levy  is  a 
justification  of  the  taking ;  but,  in  assessing  the  value  as  a  measure 
of  damages  under  (Iowa)  Rev.  St.  of  1860,  §  3563,  the  execution  is 
but  secondary,  and  the  judgment  record  is  the  best  evidence.^ 
The  fact,  that  the  plaintiff  in  an  action  of  replevin  was  compelled  to 
deposit  a  sum  of  money  with  his  surety  in  the  bond,  as  indem- 

1  Bonesteel  v.  Orvis,  22  Wis.  522.  6  Hisler  i'.  Carr,  34  Cal.  641. 

2  Bradley  v.  Morse,  21  Wis.  680.  c  q^q   j,_  Peacock,   14  Ohio   (N.    S.), 

3  Meshke  v.  Van  Doren,  16  Wis.  319.       187. 

<  Saxton  V.  Williams,  15  Wis.  292.  ''  Parsons  v.  Hedges,  15  Iowa,  119. 


106  REPLEVIN.  [book   I. 

nity,  is  not  a  foundation  for  damages.^  When  goods  taken  on 
execution  are  replevied,  and  judgment  is  rendered  against  the 
plaintift'  in  replevin,  the  damages  should  be  the  amount  of  the 
execution,  with  costs,^  In  Texas,  the  measure  of  damages  is 
the  value  of  the  property  and  interest.^ 

§  78.  Replevin  for  a  horse.  Pleas:  1st,  that  the  defendant  had 
not  taken  or  detained  the  property ;  2d,  property  in  a  stranger  ; 
3d,  property  in  the  defendant.  The  plaintiff  joined  issue  on  the 
first  plea,  and  replied  to  the  second  and  third,  property  in  himself. 
Verdict :  "  We  find  the  property  to  be  in  the  plaintiff,"  but  not 
that  the  horse  had  been  taken  or  detained  by  the  defendant. 
Judgment  against  the  defendant  for  costs.     Held,  erroneous.^ 

§  79.  Where,  besides  7ion  cejpit,  the  defendant  pleads  property 
in  a  third  person,  and  prays  a  return,  the  jury  must  pass  upon  all 
the  issues ;  and  where  in  such  case  it  appeared  from  the  record 
brought  up  by  a  writ  of  error,  that  the  jury  had  passed  only  upon 
the  plea  of  7ion  cepit,  finding  a  verdict  for  the  plaintifi",  the  judg- 
ment was  reversed,  although,  from  the  bill  of  exceptions  attached 
to  the  record,  it  appeared  that  all  the  issues  were  found  for  the 
plaintifi".^ 

§  80.  A  judgment  for  the^.  plaintiff,  where  the  defendant  has 
elected  to  give  bond  and  retain  possession,  should  be  entered 
against  both  principal  and  surety.^ 

§  81.  In  an  action  of  replevin,  under  the  Mississippi  Statute  of 
1842,  a  judgment  in  favor  of  the  plaintiff  for  so  much  money  is 
erroneous;  it  should  be  in  the  alternative  ;  for  the  property,  if  to 
be  had ;  if  not,  then  for  its  value.''' 

§  82.  Where  there  are  several  avowries,  all  presenting  sub- 
stantially the  same  defence,  upon  some  of  which  issues  of  law  are 
joined,  and  upon  others  issues  of  fact,  and  the  defendant  succeeds 
upon  the  issues  of  law,  and  the  judgment  is  rendered  upon  the 
whole  record  in  his  favor,  leaving  the  issues  of  fact  undisposed 
of;  the  judgment  will  not  for  such  omission  be  reversed,  where 
it  is  manifest  that,  if  they  had  been  tried  and  found  for  the  plain- 
tiff, the  court  would  have  given  judgment  for  the  defendant  non 
obstante  veredicto.^ 

1  Wilson  V.  HilUiouse,  14  Iowa,  199.  5  Boynton  v.  Page,  18  Wend.  425. 

2  Hayden  v.  Anderson,  17  Iowa,  158.  6  Huff  w.  Gilbert,  4  Blackf.  19. 

3  Gillies  V.  Wofford,  26  Tex.  76.  7  Anderson  v.  Tysen,  6  Sm.  &  M.  244. 
*  Huff  v.  GUbert,  4  Blackf.  19.  8  Jack  v.  Martin,  14  Wend.  507. 


CH.  VII.]  JUDGMENT.  107 

§  83.  Where  the  defendants  recover  a  judgment  for  the  value 
and  collect  it,  by  operation  of  law  the  title  passes  to  the  plain- 
tiff; and,  in  trespass  brought  by  him  against  the  defendants  for 
taking  and  carrying  away  the  property,  the  defendants  will  be  es- 
topped from  disputing  his  title.  After  having  recovered  the  prop- 
erty, or  its  value,  on  the  ground  that  the  sheriff  has  delivered  it  to 
the  plaintiff,  the  defendants  in  replevin  cannot  defeat  an  action  of 
trespass  brought  against  them  by  the  latter,  for  taking  and  car- 
rying away  the  property,  by  impeaching  the  return  upon  which 
they  have  so  recovered.^ 

§  83  a.  A  judgment  for  the  plaintiff  will  be  reversed  for  error, 
if  the  record  shows  it  to  have  been  for  more  property  than  was 
replevied ;  as  where  the  sheriff  found  that  one  of  the  four  cattle 
called  for  in  the  replevin  writ  had  died,  and  made  return  accord- 
ingly ;  and  the  judgment  was,  that  all  be  recovered.^  So  where 
a  verdict  in  replevin,  "  We,  the  jury,  find  the  right  of  the  prop- 
erty in  the  plaintiff  except  one  hundred  dollars,  which  was  not 
covered  by  the  mortgage,"  was  changed  in  its  form  l)y  the  court, 
and  judgment  rendered  for  a  return  of  the  one  hundred  dollars 
by  the  plaintiff  to  the  defendant.^  So  where,  in  a  suit  before  a  jus- 
tice of  the  peace  to  recover  personal  property  valued  at  fourteen 
dollars,  the  justice  rendered  no  findings  whatever,  but  simply 
ordered  the  defendant  to  deliver  the  property  and  pay  the  costs.* 

§  83  h.  In  Indiana,  if  the  finding  is  for  the  plaintiff",  the  judg- 
ment should  be  in  the  alternative,  that  the  plaintiff  recover  pos- 
session of  the  property,  or  the  value  thereof,  in  case  a  delivery 
cannot  be  had,  together  with  the  damages  assessed  for  deten- 
tion.'' 

§  83  c.  If  the  defendant  waives  a  personal  judgment,  the  plain- 
tiff cannot  object.^ 

§  83  d.  The  finding  should  relate  to  the  condition  of  facts  at 
the  time  when  the  action  is  brought;  and  it  is  error  to  render 
judgment  subject  to  an  equitable  condition  ;  as  for  possession, 
unless  within  a  certain  time  a  mortgage  held  by  the  plaintiff  is 
satisfied." 

§  83  e.  Where  a  third  party  intervenes,  the  judgment  is  con- 
clusive as  to  all  parties.^ 

»  Kussell  ?•.  Gray,  H  Barb.  541.  5  Bales  v.  Scott,  26  Ind.  202;  Lambert 

2  Mattin-rly  v.  Crowley,  42  111.  800.  v.  McFarland,  2  Nev.  58. 

"*  Moore  V.  Devol,  14  Iowa,  112.  *  Morrison  v.  Austin.  14  Wis.  601. 

*  Carney  i'.  Doyle.  14  Wis.  270.  'J  Kosc  ;•.  Tolly,  15  Wis.  448. 

8  Witter  V.  Fisher,  27  Iowa,  9. 


108  REPLEVIN.  [book   I. 

§  84.  The  most  striking  peculiarities  connected  with  the  action 
of  replevin,  are  the  judgment  in  favor  of  the  defendant,  if  he 
prevail  in  the  suit,  for  a  return  of  the  property  replevied,  (a)  and 
the  various  and  successive  processes  of  execution  for  enforcing 
such  judgment.  The  ancient  course  of  proceeding  upon  these 
points,  founded  upon  St.  Westminster  2d  (13  Edw.  I.),  c.  2,  and 
Sts.  7  Hen.  VIIL,  c.  4,  §  3,  and  21  Hen.  VHI.,  c.  19,  §  3,  which, 
though  for  the  most  part  practically  obsolete,  either  by  express 
statute  or  local  usage,  may  still  be  regarded  as  part  of  the  law  of 
the  land,  is  thus  described  by  a  writer  of  high  authority  :  "  The 
defendant  accordingly  sued  out  upon  the  judgment  a  retorrio  ha- 
hendo,  and  an  inquiry  of  damages,  generally  in  the  same  Avrit,  or 
sometimes  in  separate  writs,  and  upon  the  return  thereof  by  the 
sheriff",  final  judgment  was  entered  up  for  the  defendant  to  recover 
as  well  the  damages  and  costs  assessed  by  the  jury,  as  the  costs 
of  increase  assessed  by  the  court ;  and  the  defendant  might  en- 
force the  payment  of  them  by  a  capias  ad  satisfaciendum  or  Jieri 
facias.  This  was  the  regular  form  of  the  judgment ;  but  it  some- 
times happened  that  the  plaintiff,  after  the  cattle,  &c.,  were  deliv- 
ered to  him  by  virtue  of  the  replevin,  secreted,  or  otherwise 
disposed  of  them,  so  that  the  sheriff"  could  not  restore  them  to 
the  defendant  according  to  the  exigence  of  the  writ.  In  that 
case,  the  sheriff"  returned  an  averia  elongata,  that  the  cattle,  &c., 
were  eloigned,  as  it  is  called,  that  is,  were  conveyed  to  places  un- 
known to  him,  so  that  it  was  not  in  his  power  to  obey  the  writ. 
Upon  this  return,  it  was  usual  to  award  another  writ  to  the  sheriff", 
directing  him  to  take  other  cattle  of  the  plaintiff",  &c.,  of  equal 
value  with  those  eloigned,  and  deliver  them  to  the  defendant,  to 
be  by  him  detained,  irreplevisable,  until  such  time  as  the  cattle 
first  taken  should  be  forthcoming;  this  was  called  a  capias  in 
withernam.  (5)  If  the  plaintiff"  had  no  cattle,  &c.,  which  could 
be  so  taken,  the  sheriff"  returned  nihil  to  that  writ,  and  the  de- 
fendant thereupon  sued  out  a  scire  facias  against  the  pledges, 
who  had  undertaken  to  the  sheriff,  in  pursuance   of  the  statute 

(a)  See  Hill  v.  Fellows,  25  Ark.  11.    In  ty  in  which  the  judgment  was  rendered, 

replevin  for  several  articles,  if,  on  an  issue  Rathburn  v.  Ranney,  14  Mich.  382.    Judg- 

as  to  the  plaintiff's   property,  he  prove  ment  for  return  cannot  be  controlled  by 

himself  entitled  to  a  part,  the  defendant  an   amendment   of   the   officer's    return, 

has  a  right  to  a  return  of  the  others,  and  to  Tuck  v.  Moses,  58  Maine,  461. 

damages  for  the  taking  of  them.     Wright  (6)  It  is  said,  the  proceeding  by  wither- 

V.  Matthews,  2  Blackf.   187.     A  writ   of  nam  appears  never  to  have  been  resorted 

return  must  run  to  the  sheriflfof  the  coun-  to.     Morr.  Repl.  62.     See  p.  109,  n.  a. 


CH.  VII.]  JUDGMENT  —  RETURN.  109 

Westminster  2d,  that  the  cattle,  &c.,  should  be  returned  to  the  de- 
fendant, to  show  cause  why  their  cattle,  &c.,  to  the  value  of  the  cat- 
tle, etc.,  eloigned,  should  not  be  delivered  to  the  defendant.  And 
if  no  cause  was  shown,  a  writ  issued  to  take  their  cattle,  &c. ;  but 
if  they  had  none,  the  sheriff  returned  nihil  also  to  that  writ,  and 
then  a  sciix  facias  was  awarded  against  the  sheriff'  himself,  that 
he  render  to  the  defendant  as  many  caitle.  But  these  proceed- 
ings did  not  at  all  prevent  the  defendant  from  recovering  his 
damages  and  costs  under  the  statutes  of  Hen.  VIIl.  However,  a 
less  circuitous  practice  has  been  adopted  in  modern  limes.  For 
now,  upon  the  return  of  an  elongata  to  the  writ  of  retorno  ha- 
bendo,  it  is  no  longer  necessary  to  sue  out  a  capias  in  luithernam 
against  the  plaintiff",  or  a  scire  facias  against  the  pledges  or  sheriff"; 
but  the  defendant,  in  case  the  sheriff"  has  taken  no  pledges  at  all, 
or  such  as  are  insufficient,  may  bring  an  action  upon  the  case 
against  him."^  (a) 

§  85.  Upon  the  plea  of  7ion  cepit  or  non  detinet,  no  judgment 
de  retorno  habendo  can  be  rendered.  To  authorize  such  judg- 
ment, the  defendant  must  become  actor,  and  assert  property  in 
himself;'^  or,  as  elsewhere  held,  must  either  formally  traverse  the 
plaintiff" 's  title,  or  specially  plead  title  in  a  stranger.^  The  plea 
of  non  cepit  only  puts  in  issue  the  taking.*  (i) 

§  86.  And  where  a  defendant  pleaded  no7i  cepit,  and  also 
avowed  and  justified,  and  issues  were  taken  on  both  pleas,  and  a 
verdict  given  for  the  defendant,  with  judgment  for  restitution  ; 
held,  as  he  was  clearly  not  entitled  to  that  judgment  upon  the 
plea  of  non  cepit,  and  as  there  was  nothing  in  the  record  to  show 
that  the  trial  was  confined  to  the  other  issue,  or  that  the  verdict 

•  Mounson  v.  Redshavv,  1  Wms.  Saun.  v.  Howe,  2  Gilm.  342.     See  Price  v.  Van 

195,  n.  3.    See  Gibbs  v.  Bull,  18  Johns.  Dyke,  0  Hill,  G13  ;  Montgomery  v.  Black, 

435.  4  liar.  &  McH.  3U1. 

-  Bonner  v.  Coleman,  3  B.  Mon.  464  ;  »  Cliandler  v.  Lincoln,  52  111.  74. 

People  c.  Niagara,  4  Wend.  217  ;  Johnson  *  Vose  v.  Hart,  12  111.  378. 

(d)  A  writ  of  replevin  is  made  return-  Although  there  may  be  no  authority  to 

able  l)y  statute  in  South  Carolina,  and,  if  issue  an  alias  writ  of  replevin,  it  does  not 

a  sheriff  makes  return  of  cloiKjata,  a  u-ilh-  follow  that  the  defendant  will  be  entitled 

ernain   may    issue.      The   court    will   not  to  a  return.     Maxon  v.  Perrott,  17  Mich, 

decide  on  motion  on  the  claim  of  a  third  332. 

person,  not  a  privy,  to  projierty  taken  by  (h)  See    p.    81.     Under  c.    145,  §    44, 

&  n-ith-rnam.     M'Colgan  v.  Huston,  2  N.  &  Gould's  Digest.    (Ark.),   in    rendering    a 

M.  444.  judgment  for   the  defendant  upon  a  plea 

No  evidence  will  be  admitted,  in  Penn-  of  non  dctimt,  a  return  of  the  projierty,  of 

sylvanui,  to  contradict  the  sheriff 's  return  which   he   had  never  been  in  possession, 

of  tloii'/alur,  after  judgment  cle  retorno  ha-  and  which  he  did  not   claim,  should  not 

berulo  in   replevin.     Pliillips   v.   Hyde,    1  be  awarded.     Brown  v.  Stanford,  22  Ark. 

Dall.  43y.  76. 


110  REPLEVIN.  [book   I. 

was  found  on  that  alone,  judgment  must  be  reversed.^  Where  the 
pleas  were,  non  cepit,  property  in  the  defendant,  property  in  A,  and 
justification  of  the  taking  under  an  execution  against  A  ;  held  error, 
to  award  a  retorno  hahendo  upon  a  verdict  of  not  guilty  .^  And  a  writ 
of  ixtorno  hahendo  cannot  be  awarded,  unless  it  appears  from  the 
issues  tried  and  the  verdict  returned,  that  the  plaintiff  is  not  the 
owner. 3  But,  in  Maine,  if  a  verdict  of  non  cepit  is  rendered  on  a 
plea  of  non  cepit  filed  with  a  brief  statement,  the  defendant  is 
entitled  to  a  return.'*  So,  in  Massachusetts,  the  general  issue 
pleaded,  with  notice,  pursuant  to  St.  1836,  c.  273,  of  the  matter 
intended  to  be  given  in  evidence,  is  equivalent  to  an  avowry,  or 
plea  of  property  in  another,  at  common  law,  with  a  suggestion 
for  a  return ;  and  judgment  for  a  return  may  be  awarded,  if  the 
defendant  prevails."  So,  in  Wisconsin,  by  statute,  a  defendant 
is  entitled,  under  the  plea  of  non  detinet,  to  a  return  of  the  prop- 
erty and  damages.^  And,  in  New  York,  it  seems,  a  defendant, 
on  a  plea  of  7ion  detinet,  will  be  entitled  to  a  return,  where  the 
jury  find  that  the  plaintiff  has  no  property  in  the  goods.'  So  where 
there  were  pleas  of  non  cepit,  non  detinet,  the  goods  were  not  the 
property  of  the  plaintiff,  the  property  was  in  defendant,  and  prop- 
erty in  third  persons,  and  the  verdict  was  "  we,  the  jury,  find  the 
issues  for  the  defendant."^  So  an  answer  denied  that  the  prop- 
erty belonged  to  the  plaintiff,  alleged  that  ''  the  property  was  the 
property  of  B,  deceased,"  and  that  D  was  the  administrator  of  his 
estate,  admitted  possession,  and  substantially  alleged  that  the  pos- 
session was  lawfully  acquired,  and  denied  that  any  demand  for 
the  property  had  been  made.  Held,  the  defendant  was  primd 
facie  entitled  to  a  return.^ 

§  87.  With  the  exception  already  stated  in  regard  to  the  plea 
of  71071  cepit  or  non  detinet,  the  precise  manner  in  which  the  de- 
fendant prevails  in  the  suit  seems  to  be  immaterial,  as  affecting 
his  right  to  a  return  of  the  property,  (a)  It  is  held,  generally, 
that,  if  the  writ  be   returned  "  executed,"   and    the    defendant 

1  Gaines  v.  Tibbs,  6  Dana,  143.  *"'  Saunderson  v.  Lace,  1  Cliand.  231. 

2  Hanford  v.  Obrecbt,  38  111.  493.  ^  McKnight  v.  Dunlop,  4  Barb.  36, 
8  Bourk  V.  Riggs,  38  III.  320.                            8  Underwood  v.  White,  45  111.  437. 

4  Moulton  V.  Bird,  31  Maine,  296,  9  Bartlett  v.  Brickett,  98  Mass.  521. 

6  Hoffman  v.  Noble,  6  Met.  68. 

(a)  It  is  held,  that  the  answer  need  not  for  him,  is  entitled  to  a  judgment  for  re- 
claim a  return.  Conner  v.  Comstock,  17  turn  or  for  the  value  of  the  property,  and 
Ind.  90  ;  Matlock  v.  Straughn,  21  ib.  128.  for  damages  for  its  detention,  without  an 

In  Kentucky,  a  defendant  who  sets  up  express   prayer    therefor.    Bates    v.   Bu- 

title  in  himseltj  on  the  issue  being  found  chanan,  2  Bush,  117. 


CH.  VII.]  JDDGMENT  —  RETURN.  Ill 

succeed  in  the  action,  a  judgment  de  retorno  is  proper.^  Thus 
the  plaintiff'  is  liable  for  a  return,  though,  by  order  of"  court,  the 
proceedings  subsequent  to  the  writ  are  set  aside.^  So,  where  a 
plaintiff  discontinues  his  suit,  the  necessary  result  must  be  a 
liability  for  the  property  and  damages  for  detention  ;  and  the 
defendant  may  elect  to  have  a  return  and  his  damages.^  (a)  So, 
after  dismissal  of  an  action  of  replevin  for  want  of  a  sufficient 
bond,  a  judge  of"  the  (Mass.)  Superior  Court  has  jurisdiction  to 
order  judgment  for  a  return,  although  no  answer  has  been  filed ; 
and  such  order  should  be  passed,  upon  a  motion  made  at  the  same 
term  when  the  action  is  dismissed,  with  an  averment  and  offer  of 
proof  that  the  defendant  has  a  special  property  in  the  goods.'* 
So,  where  the  plaintiff  enters  a  nol.  pros,  upon  co(jnhance  and 
claim  of  property,  there  must  be  judgment  for  return,  unless  the 
judgment  shows  the  defendant  is  not  entitled  to  it.  And  denial 
of  the  plaintiff,  by  his  replication,  that  the  defendant  had  a  right 
to  the  property,  does  not  affect  his  right  to  judgment  for  it.'^  So 
where  the  defendant  prevails,  as  being  a  joint  owner  with  the 
plaintiff,  he  is  entitled  to  a  return.*'  So  where  a  demurrer 
is  overruled,  to  a  plea  which  is  good,  alleging  property  in  a 
stranger,  and  the  jury  find  damages  for  the  detention,  judg- 
ment de  retorno  habendo  and  for  the  damages  assessed  is  proper." 
So  judgment  de  retorno  hahendo  is  proper,  where  the  defendant 
pleads  property  in  a  stranger,  and  the  issue  is  found  for  liim.'^ 
And  an  avowry,  or  suggestion  in  the  nature  of  an  avowry,  by 
the  defendant,  is  not  necessary  to  authorize  a  judgment  of  return, 
where  the  writ  is  abated  or  set  aside  on  account  of  an  irregu- 
larity or  defect  in  the  replevin  process.'**  So  if  a  debtor,  whose 
goods  are  attached  and  replevied,  takes  advantage  of  the  insol- 
vent law,  and  the  defendant  in  replevin  obtains  a  verdict ;  he 
will  still  be  entitled  to  judgment  for  a  return,  and  will  there- 
upon be  bound  to  deliver  over  the  property  to  the  assignee  for 
the  benefit  of  creditors. ^'^     So  there  shall  be  a  return,  though  the 

1  Stepliens  v.  Frazier,  12  B.  Mon.  250.  '''  Witliam  v.  "Witham,  57  Maine,  447. 

2  SniitH  V.  Snyder,  15  W^end.  3'J4.  ''  Tuley  v.  Mauzey,  4  B.  Mon.  6. 
8  Saunderson  r.  Lace,  1  Chand.  231.  8  Jb. 

4  Lowe    V.   Brigliam,   3    Allen,    42")  ;  »  Fleet  v.  Lockwood,  17  Conn.  233. 
Hoeffner  v.  Stratton,  57  Maine,  447.                   '"  Kimball  v.  Thompson,  4  Cush.  441. 

5  Kerley  v.  Ilume,  3  Mon.  181. 

(a)  When  a  plaintiff  is  nonsuited,  on  the  latter  is  not  entitled  to  a  judjiment  for  a 
ground  that  the  property  had  Tiever  been  return  of  the  i)roperty,  or  for  its  value, 
iu  the   possession   of  the   defendant,  the     Gallagher  v.  Bisliop,  15  Wis.  270. 


112  REPLEVIN.  [book  I. 

defendant  has  gone  into  insolvency  pending  the  action,  unless 
the  assignee  becomes  a  party. ^  So,  after  a  verdict  for  the  defend- 
ant in  replevin  against  an  attaching  officer,  in  which  the  ques- 
tion of  property  in  the  plaintiff  was  tried,  and  a  verdict  found 
against  him  ;  judgment  for  a  return  will  be  ordered,  although 
since  the  verdict  the  attachment  has  been  dissolved.^  So  where 
a  writ  of  replevin  for  goods,  attached  as  the  property  of  another 
person,  is  abated  for  want  of  the  requisite  bond,  a  judgment  for 
return  to  the  officer  is  correct.*^  So,  although  no  answer  has 
been  filed  ;  and  such  order  should  be  passed,  upon  a  motion  made 
at  the  same  term  when  the  action  is  dismissed,  with  an  averment 
and  offer  of  proof  that  the  defendant  has  a  special  property  in 
the  goods.*  And  to  authorize  a  judgment  de  retorno  habendo  in 
favor  of  the  sheriff,  it  is  sufficient  that  he  allege  the  taking  by 
fi.fa.  against  the  plaintiff,  and  that  the  property  belonged  to  the 
defendant,  subject  to  the  writ,  and  that  the  jury  so  found.^  So, 
in  replevin  against  two  defendants,  A  and  B,  A  avowed  and  jus- 
tified, under  an  execution  levied  by  him  as  deputy  sheriff;  B 
made  cognizance  as  plaintiff  in  the  same  execution.  A  having 
died  before  the  trial,  B  filed  a  new  avowry,  justifying  the  taking 
by  himself  alone,  as  both  had  justified  before,  on  which  the  plain- 
tiff took  issue,  and  judgment  was  given  for  B,  awarding  restitu. 
tion.  Held,  the  judgment  was  correct.^  So  where  the  issue  is 
the  right  of  possession,  a  verdict  for  the  defendant  primd  facie 
entitles  him  to  a  return.^  So  where  the  plaintiff  claims  to  own 
the  property,  but  that  he  allowed  the  defendant  to  keep  it  till 
demanded,  and  that  a  demand  was  made ;  and  the  defendant 
claims  the  title,  and  recovers  a  verdict  for  want  of  demand  only : 
be  is  entitled  to  a  return.^ 

§  88.  But  the  general  rule  above  stated  is  subject  to  many 
qualifications  and  exceptions.  A  return  of  property  will  not  be 
ordered,  when  in  equity  it  ought  not  to  be  returned,  though  the 
defendant  has  judgment  in  his  favor.  The  power  of  the  court 
and  the  extent  of  inquiry  are  as  unlimited  as  in  a  suit  in  equity.^ 
In  New  Hampshire,  it  has  been  held  that  a  judgment  for  the 
defendant  must  be  for  the  value  of  the  chattels'in  damages,  and 

1  Hallett  V.  Fowler,  10  Allen,  36.  6  Gaines  v.  Tibbs,  6  Dana,  143. 

2  Dawson  v.  Wetherbee,  2  Allen,  461.  ^  Barry  v.  O'Brien,  103  Mass.  520. 

3  Fleet  V.  Lockwood,  17  Conn.  233.  «  lb. 

4  Lowe  V.  Brigham,  3  Allen,  429.  »  Bath  v.  Miller,  53  Maine,  308. 

5  Stephens  v.  Frazier,  2  B.  Mon.  250. 


CH.    VII.]  JUDGMENT — RETURN.  113 

not  for  a  return.^  So,  if  the  action  is  defeated  solely  by  reason 
of  its  being  prematurely  brought,  judgment  for  a  return  will  not 
be  ordered.-  So  an  officer,  against  whom  replevin  is  brought, 
has  no  right  to  a  judgment  for  the  return  of  property  which  he 
has  no  right  to  sell.^  And  where  the  return  upon  the  writ  shows 
a  restoration  of  the  property,  a  judgment  for  return  is  erroneous, 
notwithstanding  a  remittitur  of  the  damages.*  So  where  chattels, 
mortgaged  by  the  defendant  to  the  plaintiff,  but  without  a  proper 
record,  were  attached  as  the  defendant's  ;  in  replevin,  held,  the 
plaintiff  was  not  entitled  to  judgment,  because  there  was  no 
wrongful  taking  or  detention  by  the  defendant,  but  the  defendant 
was  not  entitled  to  a  return,  because  as  against  him  the  plaintiff 
had  a  right  to  the  chattels,  although  the  mortgage  was  not  re- 
corded, and  the  defendant  was  not  accountable  for  them  to  the 
officer  or  the  creditor.^  So,  in  Indiana,  there  shall  be  no  return, 
unless  it  be  proved  that  the  property  was  delivered  to  the  plain- 
tiff, or  unless  the  value  is  assessed.^  And  in  a  very  late  case  it  is 
held  that  there  shall  be  no  return  where  the  defence  is  title  in  a 
third  person,  unless  the  defendant  claims  under  him." 

§  89.  An  action  of  tort  against  an  officer,  for  taking  property 
from  the  plaintiff  by  a  writ  of  replevin,  in  which  the  bond  was 
defective,  is  not  defeated  by  proof  that  the  plaintiff  in  replevin 
became  nonsuit,  and  the  present  plaintiff  had  judgment  therein 
for  damages,  and  a  return;  if  that  judgment  remains  unsatisfied, 
and  the  goods  have  not  been  returned.^ 

§  90.  If  an  action  of  replevin  is  dismissed  for  informality  in 
the  bond,  and  judgment  given  for  a  return,  and  the  plaintiff  re- 
turns the  property  to  the  place  from  whence  he  first  took  it ;  he 
may  afterwards  bring  another  action  of  replevin  against  the  same 
defendant,  altliough  the  defendant  has  not  taken  out  a  writ  of 
return,  nor  actually  received  tlie  property,  under  the  judgment  in 
the  first  action.'^ 

§  91.  Wherever  the  defendant  in  a  replevin  suit,  under  the 
pleadings,  may  try  the  title,  and,  in  case  he  succeeds,  have  a  re- 
turn ;  he  is  bound  to  try  the  title,  and  take  judgment  for  a  return, 

1  Bell  V.  Bartlett,  7  N.  II.  178.  «  Conner  v.  Comstock,  17  Ind.  90. 

'i  Martin  v.  Bavlcv,  1  Allen,  381.  7  (Jerber  v.  Monie,  50  Barb.  052. 

3  Saffell  V.  Wash,*4  B.  Mon.  «t2.  8  Dearborn  v.  Kellev,  3  Allen,  420. 

*  Harrod  v.  Hill,  2  Dana,  105.  9  Walbridge  i'.  Shaw,  7  Cush.  500. 
6  Simpson  v.  McFarland,  18  Pick.  427. 


114  EEPLEVIN.  [book  I. 

or  the  value  ;  and  he  cannot  forego  such  remedy,  and  seek  redress 
in  a  cross  suit.^ 

§  92.  Where  the  plaintiff  became  nonsuit,  and  a  judgment  was 
rendered  for  a  return  and  restitution  ;  if  the  clerk,  in  issuing  the 
writ  of  restitution,  insert  therein  the  value  of  the  property  as 
named  in  the  replevin  writ,  this,  being  unauthorized  by  the  judg- 
ment, and  a  mere  ministerial  act,  will  be  regarded  as  a  nullity.^ 

§  93.  After  judgment  for  the  defendant  in  an  action  of  re- 
plevin, in  which  the  title  was  tried,  it  is  too  late  for  the  plaintiff, 
in  order  to  prevent  the  entry  of  judgment  for  a  return,  to  allege 
and  prove  facts  which  were  known  to  him  at  the  trial  on  the 
merits,  for  the  purpose  of  defeating  the  defendant's  title. ^ 

§  94.  The  right  of  property  acquired  by  the  plaintiff  in  replevin, 
by  the  delivery  to  him  of  the  chattel  by  virtue  of  the  writ,  is  a 
temporary  right  of  possession,  which  terminates  upon  the  abate- 
ment or  discontinuance  of  the  suit,  or  by  a  judgment  in  favor  of 
the  defendant,  although  a  return  be  not  adjudged.  Therefore, 
where  one  sued  in  replevin  in  the  detinet  pleads  only  non-detinet, 
and  has  a  verdict  in  his  favor  and  a  judgment  for  costs,  but  not 
for  a  return  ;  and  afterwards  demands  the  property :  he  may 
maintain  trover  for  it,  though  he  might  have  so  pleaded  in  the 
first  suit  as  to  have  entitled  himself  to  a  return,  or  the  value  of 
the  property  in  damages.'^  Judgment  for  return  is  final  and  con- 
clusive.^ It  is  conclusive  that  the  defendant's  right  of  possession 
is  superior  to  that  of  the  plaintiff.^ 

§  95.  It  is  an  irregularity  for  the  court  to  order  a  writ  of  return 
and  restitution  before  final  judgment ;  it  should  be  made  a  part 
of  the  final  judgment.^  But  a  judgment  fur  a  return,  not  tech- 
nically conformed  to  statute,  but  substantially  correct,  Avill  be 
affirmed.^  (a)     The  action  remains  in  court  until  the  question  of 

1  MeKnight  v.  Dunlop,  4  Barb.  86.  '=  Tuck  r.  Moses,  58  Maine,  461. 

1!  Thomas  v.  Spottbrd,  46  IMaine,  408.  e  Bath  r.  Miller,  53  Maine,  308. 

3  McMeal  r.  Leonard,  3  Allen,  268.  ''  Branch  v.  Branch,  5  Florida,  447. 

4  Yates  V.  Fassett,  5  Denio,  21.  8  McArthiir  v.  Hogan,  1  Hemp.  286. 

(a)  In  Indiana,  in  replevin,  the  plea  was  As  already  suggested)  the  statutory  law 

property  in   the  defendant.     Verdict  for  has  modified  the  rules  relating  to  return, 

the  defendant,  assessing  his  damages  at  as  well  as  most  other  points  in  the  action 

$40.75.     Judgment,    that    the    defendant  of  replevin. 

have  a  return  and  recover  the  damages  In   j^ew    York,    where   a  plaintiff   in 

assessed  with  costs.     Held,  the  assessment  replevin   submits   to  a  nonsuit,  and  the 

of  damages  was  surplusage,  that  tlie  part  defendant,  entitled  to  a  judgment  de  retor- 

of  the  judgment  founded  upon  it  was  erro-  no,  elects  to  take  judgment  for  the  value, 

neous,  and  tlie  residue  of  the  judgment  he  may  have  such  value  assessed  by  the 

was  right.     Wolf  v.  Blue,  5  Blackt".  153.  jury  impanelled  in  the  cause,  and  need 


CH.    VII.] 


JUDGMENT  —  RETURN. 


115 


return  is  acted   upon,  although   the  wi-it   lias   been  abated  for  a 
defect  in  the  bond.^    After  judgment  for  the  defendant,  upon  trial 

1  Tuck  V.  Moses,  58  Maine,  4C1. 


not  issue  a  writ  ofiiH/nin/  for  that  purpose. 
Van  Alstyno  v'.  Kittle,  IS  Wi'ud.  C)2i. 
Wliere  the  (let'emhuit,  in  rejileviii  offjoods 
distrained,  obtains  a  nonsuit  or  a  verdict, 
after  issue  joined,  so  that  lie  would  he 
entitled  to  judjjnient  for  a  return  ;  he 
cannot  take  the  alternative  judgment  for 
its  value,  and  have  such  value  determined 
on  a  writ  of  in(|uiry.  His  only  course  to 
ol)tain  a  judi^Mient  in  the  nature  of  dani- 
ajies  for  its  value,  is  to  procure  a  valuation 
from  the  jui'V  impanelled  at  the  trial. 
And,  if  the  distress  were  for  rent,  the  jury 
must  also  find  the  amount  in  arrear,  and 
the  juilf,Mnent  will  be  limited  to  such 
amount.  'I'he  same  rule  applies,  where 
tiie  ]ilaintitl'is  nonsuited  at  the  trial  on  his 
openintr  proof,  and  the  defendant  gives  no 
eviilence  ;  if  the  defendant  has  in  fact  put 
in  avowries  claiming  the  property  under 
distress  for  rent,  or  if  it  otherwise  appear 
tliat  the  property  was  di.^lrained  for  rent. 
'J'he  statute  of  replevin  excepts  cases, 
wliere  the  goods  replevied  were  distrained, 
from  the  general  provision  for  ascertain- 
ing their  value  by  a  writ  of  inquiry,  after 
a  nonsiiit  or  discontinuance.  Redman  v. 
Ilenricks,  1  Sandf.  32.  Where,  in  an  ac- 
tion for  the  recovery  of  ])ers()iial  pro])erty, 
the  property  is  delivered  to  the  ])laintifl', 
ami  he  tails  in  the  action  ;  the  defendant 
cannot  now  have  a  judgment  for  return, 
or  for  the  value,  at  his  election.  But  he 
must,  under  §  '211  of  the  Code,  take  a 
judgment  in  the  alternative,  for  the  return, 
or  for  the  value  thereof  as  assessed,  in  case 
a  return  cannot  be  had.  Seaman  v.  L\ice, 
23  Barb.  -240.  And  a  later  case  decides, 
that  the  defendant  in  an  action  for  the 
recovery  of  personal  property  can  take 
judgment  for  the  value  only  as  an  alter- 
native judgment.  The  judgment  must 
1)C  either  for  the  return  of  the  property  or 
its  value.  Dwiglit  r.  I-'nos,  •">  Seld.  470. 
Where  the  iilaiiititls  luive  only  a  sjiecial 
property,  and  judgment  has  been  entered 
for  the  amount  of  their  interest  ;  it  may 
be  amended,  by  changing  it  into  a  judg- 
ment for  the  goods,  or  for  their  value, 
assesseil  at  this  amount.  Fitzhugh  f.  Wi- 
nian,  ;j  Seld.  oo'J. 

in  Delaware,  jndgnient  for  the  defend- 
ant on  a  plea  of  property  is  pro  retoruo 
IkiIii'ikIo  :  but,  if  he  cannot  have  a  return, 
he  may  have  judgment  for  damages  to  the 
value  of  the  goods,  &c.  Clerk  r.  Adair,  3 
Ilarring  113. 

In  Arkansas,  if  the  goods  are  not  taken 
and  delivered  to  the  plaiutitf,  a  judgment 


for  the  plaintiff'  should  be  not  only  for 
costs  and  ilamages,  but  also,  as  the  statute 
provides,  in  the  alternative,  that  the  goods 
and  chattels  shall  be  rejilevied  and  deliv- 
ered to  him,  or  that  lie  recover  their 
assessed  value.  Kowark  r.  Lee,  14  Ark. 
425. 

In  Wisconsin,  judgment  nuiy  be  in  the 
alternative  for  a  return,  or,  in  ilefault 
thereof,  the  assessed  value.  Heeron  r. 
Beckwith,  1  Wis.  17.  When  the  ])laintiff 
has  obtained  possession  under  the  statute, 
if  the  jury  find  the  defendant  entitled  to 
possession,  he  maj-  waive  a  return,  and 
take  jiiilgmcnt  for  the  value  alone.  The 
statute  authorizes  the  jury  to  assess  the 
value  in  all  cases  where  they  find  the 
defendant  entitled  to  a  return,  whether  lie 
waives  the  return  or  not.  Farmers'  &c. 
I'.  Commercial,  15  Wis.  424.  Where  the 
property,  in  an  action  for  the  recovery  of 
personal  property,  had  been  redelivered 
to  the  defendant,  his  possession  of  it  is  not 
qualified  by  the  undertaking  he  gave  to 
procure  its  redelivery,  and,  on  its  dismissal 
by  the  common  rule,  no  order  for  return 
is  necessary ;  the  undertaking  becomes 
fundus  officio,  and  the  possession  of  the 
defendant  becomes  a  possession  in  his 
own  right.  Hackett  r.  Bonnell,  10  Wis. 
471.  A  plaintiff  in  replevin,  who  has 
obtained  possession  under  the  statute,  and 
against  whom  the  defendant  seeks  jiulg- 
ment  for  a  return,  or  the  value  in  case  a 
return  cannot  be  had,  may  show  that  the 
value  is  less  than  that  alleged  in  the 
complaint,  although  the  answer  does  not 
deny  such  allegeil  value.  Jenkins  v. 
Steanka,  I'J  Wis.  126.  A  person  who  had 
dejiosited  gold  coin  with  a  bank,  to  be 
returned  in  like  coin,  brought  an  jiction  to 
recover  jiossession  of  it.  Held,  that  a 
judgment  for  the  return  of  the  gold,  or, 
in  default  thereof,  for  its  )iar  value  with 
interest  from  the  time  of  demand,  was 
correct,  although  gold  was  worth  a  con- 
siderable premium  in  legal  tender  notes. 
Warner  i'.  Sauk  Couiitv  Bank,  20  Wis. 
4'J2. 

In  Missouri,  where,  under  Practice  Act, 
art.  7,  the  plaintiff"  u))oii  giving  bonds 
obtains  jiossession  of  the  jtrojierty,  and 
fails  to  ])rosecute  his  action  with  ellect, 
and  the  defendant,  as  against  the  plaintiff, 
has  only  a  lien  ;  the  juilgnient  in  favor  of 
the  defendant  sluuild  be  only  for  the  value 
of  his  interest,  or  for  a  return,  until  such 
value  should  be  jiaid,  at  the  defendant's 
election.     But  if  the  plaintiff  has  no  inter- 


116 


REPLEVIN. 


[book  I. 


of  title,  the  plaintiff  cannot,  in  order  to  prevent  judgment  for  a 
return,  allege  and  prove  facts  which  were  known  to  him  at  the 
trial,  for  the  purpose  of  defeating  the  defendant's  title.^ 

1  McNeal  v.  Leonard,  3  Allen,  268. 


est,  the  judgment  should  be  for  the  de- 
fendant for  the  full  value  of  the  property, 
and  he  will  be  answerable  over  to  the 
owner  for  the  balance  due  to  him.  Dil- 
worth  )'.  McKelvey,  30  Mis.  149. 

In  Massachusetts,  in  case  of  judgment 
for  a  return,  the  plaintiff  is  bound  by  the 
bond  prescribed  by  tlie  Rev.  Sts.  c.  113, 
as  well  as  that  prescribed  by  Sts.  1789,  c. 
26,  to  restore  the  goods  in  like  good  order 
and  condition  as  when  taken.  Parker  v. 
Siraonds,  8  Met.  205. 

In  Pennsylvania,  if  the  plaintiff  recovers 
the  whole  value  in  damages,  the  defend- 
ant has  judgment  de  retorno  hahendo,  and 
a  condition  in  a  bond  given  by  him,  to 
return  the  property  to  the  plaintiff  if  it 
should  be  so  adjudged,  is  simply  void. 
Moore  v.  Shenk,  3  Barr,  13.  The  short 
judgment  in  replevin,  when  in  favor  of 
the  defendant,  is  a  judgment  for  return. 
Heffner  v.  Reed,  3  Grant,  245.  Where 
goods  are  not  replevied,  but  are  detained 
by  the  defendant,  he  cannot  satisfy  a 
judgment  against  him  in  replevin  by  giv- 
ing up  the  property  and  paying  the  dam- 
ages assessed  for  the  taking  and  detention  ; 
retorno  hahendo  has  no  existence,  except  in 
a  case  where  the  goods  have  been  replev- 
ied and  the  verdict  is  for  tiie  defendant. 
Schofield  V.  Ferrers,  46  Penn.  438. 

A  late  case  in  Vermont  settles  some 
points  in  relation  to  return,  as  well  as 
other  collateral  questions.  Where  an 
action  of  replevin  is  dismissed  on  motion, 
upon  the  ground  that  it  was  not  brought 
in  the  county  where  tlie  property  was 
detained,  though  brought  in  the  county 
where  one  of  the  parties  resided  ;  the  court 
still  has  jurisdiction  and  is  bound  to  ren- 
der judgment  for  a  return,  without  proof 
of  any  right  to  such  return,  or  any  formal 
plea  or  avowry  ;  and  the  plaintiff  cannot 
set  up  title  as  ground  for  contesting  such 
judgment.  But  he  is  not  debarred  from 
disputing  the  defendant's  title  in  another 
action.  After  dismissal  of  the  action  for 
ground  not  affecting  the  merits  ;  the  de- 
fendant cannot  claim  an  award  of  damages 
for  the  taking,  detainer,  or  misuse  of  tlie 
property.  Collamer  v.  Page,  35  Vt.  387. 
The  defendant  in  this  case  claimed  dam- 


ages for  the  wool  taken  from  the  sheep 
which  were  the  subject  of  the  action.  Mr. 
Chief  Justice  Poland  remarks  :  "  Tiiere 
would  not  seem  to  nie  any  good  reason 
why  tlie  defendants  miglit  not  have  their 
remedy  on  tlie  bond  for  not  returning  the 
wool  which  was  apart  of  the  sheep,  when 
replevied.  However  this  may  be,  if  the 
defendants  were  legally  entitled  to  hold 
the  sheep  and  the  wool,  no  doubt  is  ex- 
pressed by  their  counsel  that  they  can 
maintain  some  action  to  recover  it,  and 
although  it  is  said  that  they  miglit  fail  to 
get  satisfaction,  by  reason  of  the  want  of 
ability  in  the  plaintiff  to  respond  to  the 
judgment,  we  think  they  should  rather 
incur  that  risk,  than  that  they  should  have 
a  final  judgment  for  it,  while  the  question 
of  ownership  is  unsettled."  lb.  397.  "  The 
judgment  for  the  return  is  a  mere  incident 
of  the  principal  judgment,  which  makes 
a  determination  of  the  cause.  Wlien  that 
is  upon  trial,  and  upon  the  merits,  so  as 
to  be  conclusive,  then  the  judgment  for  a 
return  is  of  the  same  character.  If  the 
judgment  for  the  defendant  is  merely  in 
abatement,  or  of  that  character,  it  is  only 
an  end  of  that  particular  action,  and  no 
bar  to  the  commencement  of  another  for 
the  same  cause,  and  if  such  judgment  be 
followed  by  a  judgment  for  a  return,  it  is 
of  the  same  character."  Per  Poland,  C.  J., 
395.  In  this  case,  Mr.  Chief  Justice  Po- 
land goes  into  an  elaborate  review  of  the 
authorities  on  the  subject  of  return.  The 
word  nonsuit,  used  in  the  statute,  was  held 
to  be  used  in  a  liberal  sense,  and  to  include 
the  termination  of  the  suit  in  the  manner 
above  stated. 

Imprisonment  on  an  execution  in  a  re- 
plevin suit  does  not  fall  within  the  prohi- 
bition either  of  the  constitution,  art.  6, 
§  33,  or  of  the  non-imprisonment  Act  of 
1839,  2  Comp.  L.  c.  166.  Puller  v.  Bow- 
ker,  11  Mich.  204.  A  capias  ad  satisfacien- 
dum, not  being  issuable  on  a  judgment  in 
replevin,  either  at  common  law  or  by  any 
other  statute  of  Michigan,  cannot  be  issued 
on  such  a  judgment  rendered  in  the  State 
Circuit  Court.     lb. 


CH.    VIII.] 


REPLEVIN  BONDS. 


117 


CHAPTER   VIII. 


REPLEVIN     BONDS. 


1.  Necesoitv  of  a  bond. 
3.  Forin  ot' the  bond;  by  what  informali- 
ties avoided. 

13.  'lime  of  commencing  a  suit  upon  the 
bonil ;  judi,'ment  in  the  replevin  suit. 
17.  OaniiiKes. 

30.  Defence    to    an  action   on   a   replevin 
bond. 


42.  Pleadings  and  evidence. 

46.  Construction  of  replevin  bonds;  pros- 
ecution of  the  replevin  suit;  final  judg- 
ment, (SL-c. 

50.  Etlect  of  the  death  of  a  party. 

54.  Appeal  and  review. 


§  1.  As  we  have  already  explained,  in  other  connections,  a  bond, 
for  tlie  restoration  of  the  property  replevied  if  the  defendant  shall 
prevail  in  the  suit,  is,  unless  otherwise  provided  by  statute,  an  in- 
dispensable accompaniment  to  the  writ  of  replevin,  (a)  The  right 
to  prosecute  an  action  of  replevin,  and  to  take  possession  of  goods 
upon  a  mere  claim  of  title,  before  trial,  is  said  to  be  purely  a  statu- 
tory right,  and  is  only  to  be  exercised  upon  a  compliance  with  the 
terms  of  the  statute.^  Thus,  in  New  York,  it  was  held  that  a  re- 
plevin bond  must  be  executed  and  delivered  to  the  sheriff,  or  the 
proceedings  will  be  irregular;  it  is  no  longer  optional  with  the 
sheriff  to  dispense  with  a  bond.^     And  in  justifying  the  taking  of 


1  Bennett  v.  Allen,  30  Vt.  684. 

2  Wil.son  I'.  Williams,  18  Wend.  581 ; 
Pironi   v.   Borden,   6  Pike,   81 ;   Pool   v. 

{a)  The  execution  of  a  replevin  bond 
by  the  defendant  in  attacliment,  before 
the  return-day  of  the  writ,  is  equivalent 
to  personal  service  of  process  on  him,  and 
renders  him  personally  amenable  to  the 
jurisdiction  of  the  court.  Richard  v. 
Mooney,  39  Miss.  357. 

In  Delaware,  in  cases  of  distress  for 
rent,  the  condition  of  the  replevin  bond  is 
to  prosecute  the  suit  and  satisfy  tlie  judg- 
ment ;  in  other  cases,  it  is  to  prosecute 
the  suit  and  make  return,  if  return  be 
awarded.  Clark  v.  Adair,  3  Ilarring. 
113. 

As  to  the  general  nature  and  effect  of 
a  rejilevin  bond,  more  particidarly  upon 
the  point  of  its  being  a  snbsllhile  for  the 
goods  replevied,  see  the  remarks  of  V.v. 
Justice  Wilde,  in  the  case  of  Badlam  v. 


Loomis,  ib.  110;  Baldwin  v.  Whittier,  4 
Shep.  83. 

Tucker,  1  Pick.  284.  That  it  is  no  sub- 
stitute, see  Lovett  v.  Burkhardt,  44  Penn. 
173. 

In  Ohio,  on  the  other  hand,  "  the  bond 
takes  the  place  of  the  property  to  the  ex- 
tent of  tiie  interest  of  the  defendant  in 
replevin."  Per  Wihlcr,  J.,  Crittenden  r. 
Lingle,  14  Ohio  St.  185  ;  Smith  v.  M'Ure- 
gor,  10  ib.  4G1. 

The  obligation  of  a  replevin  bond  is 
held  to  be  like  that  of  otiier  bonds. 
Morehouse  v.  Bowen,  9  Min.  314.  A 
])lainlifr  in  rejdevin,  who  joins  in  the  un- 
dertaking to  prosecute  the  action  and 
restore  the  property  delivered  to  him,  in 
case  of  a  judgment  to  that  effect,  is  liound 
to  the  same  extent  as  any  otiier  obligor. 
Buck  V.  Lewis,  9  Min.  314. 


118  REPLEVIN.  [BOOK  I. 

property  by  a  sheriff,  under  a  Avrit  of  replevin,  it  must  be  averred 
that  a  bond  for  a  return  of  the  property  was  delivered  with  the  writ 
to  the  ofScer.i  ^[^q  officer  may  hold  the  property  a  reasonable  time 
for  the  plaintiff  lo  prepare  the  bond.  But  if  he  neglects  or  refuses 
to  do  it,  the  officer  should  restore  the  property.  And  where  the 
officer  continued  to  hold  the  property,  the  writ  was  quashed,  and 
judgment  rendered  of  discontinuance  and  return,  and  for  dam- 
ages.^ 

§  2.  But  a  writ  of  replevin  will  not  be  quashed  for  insufficiency 
of  the  bond,  after  a  trial  on  the  merits.-^  And  it  is  sometimes 
held,  that  the  omission  to  give  bond  and  security,  before  the  issu- 
ing of  the  writ,  does  not  invalidate  the  writ,  but  only  subjects  the 
sheriff  to  an  action  by  the  defendant,*  Also,  that  the  statutory 
bond  may  be  waived  by  agreement.^ 

§  2  a.  In  Missouri,  the  principal  in  a  replevin  bond  may  be  a 
third  party  ;  and,  if  the  bond  be  forfeited,  a  judgment  may  be 
rendered  against  him  as  principal.^ 

§  2  6.  Where  the  plaintiff,  in  an  action  for  the  claim  and  deliv- 
ery of  personal  property,  died  after  the  execution  of  an  under- 
taking to  him  by  the  defendant  for  the  purpose  of  regaining 
possession,  and  before  the  trial,  and  A  was  substituted  as  plaintiff; 
held,  A  was  the  party  entitled  to  recover,  and,  as  such,  the  un- 
dertaking took  effect  in  his  favor  as  the  plaintiff  entitled  to  a 
return.'' 

§  2  c.  Where  a  bond  is  made  payable  to  an  administrator  indi- 
vidually, and  he  sues  on  it  in  his  own  name,  but  alleges  that  the 
action  is  brought  for  the  benefit  of  the  estate,  and  in  an  amended 
petition  sets  forth  his  representative  capacity  ;  judgment  may  be 
rendered  in  his  name.^ 

§  2  cZ.  A  complaint  in  an  action  on  a  replevin  bond,  which  alleges 
that  the  suit  of  replevin  was  commenced  against  A  and  B,  that  the 
property  was  in  the  possession  of  both  of  them,  and  that  judg- 
ment was  rendered  in  favor  of  the  defendants  ;  shows  a  cause  of 
action  in  favor  of  B,  although  it  avers  further  that  the  property 
belonged  to  A.^ 

1  Morris  v.  Van  Voast,  19  Wend.  283;  *  Vaiden  r.  Bell,  3  Rand.  448. 

Smith  V.  McFall,  18  ib.  521.     See  Buel  v.  5  Rabb  v.  Kilgore,  1  N.  &.  M'C.  331. 

Davenport,  1  Root,  261 ;  Webster  u.  Price,  «  Frei  v.  Vogel,  40  Mis.  149. 

ib.  56  ;  Smith  v.  Travel,  ib.  165.  ^  Emerson  v.  Booth,  51  Barb.  40. 

^  Morris  v.  Baker,  5  Wis.  389.  «  Oliver  v.  Townsend,  16  Iowa,  430. 

3  Johnson  v.  Richards,  2  Fairf.  49.  »  Story  v.  O'Dea,  23  Ind.  326. 


CH.    VIIT.]  REPLEVIN    BONDS.  119 

§  2  e.  If  one  of  two  obligees  is  insolvent,  and  an  assignee  is 
clioson  subsequently  to  the  taking  of  the  bond,  an  action  upon 
the  bond  must  be  brought  in  the  name  of  tlie  other  alone. ^ 

§  2/.  Bonds  given  in  an  ordinary  action  in  the  initure  of  re- 
plevin cannot  bo  enforced  against  the  secui-jty  by  motion.- 

§  2  gr.  In  New  York,  in  a  suit  against  sureties, on  an  undertaking 
given  on  commencing  a  suit  to  recover  possession  of  personal 
property,  they  cannot  avail  themselves,  in  defence,  of  the  fact  that 
they  were  excepted  to  by  the  defendant  in  the  action,  and  failed 
to  justify.^ 

§  2  h.  Pending  a  replevin  suit,  the  sureties  to  the  bond  are 
treated  as  in  court;  and,  not  objecting,  they  are  concluded  by  a 
judgment  or  order,  to  which  the  principal  consents,  on  condition 
that  execution  be  stayed  for  a  time,  although  execution  is  so 
stayed.*  So  the  sureties  will  not  be  discharged  by  an  agreement 
to  stay  execution  against  their  principal,  given  upon  the  under- 
standing that  such  sureties  were  represented  and  satisfied,  and 
under  such  circumstances  that  equity  would  not  enjoin  an  execu- 
tion taken  out  in  violation  of  the  agreement.'''  But  the  reference 
of  a  replevin  suit  to  arbitration,  without  the  knowledge  or  consent 
of  the  surety,  discharges  him.*' 

§  2  i.  A  surety  cannot  in  his  own  name  prosecute  an  appeal,  to 
retry  the  issues  made  and  determined  between  his  principal  and 
a  defendant  against  whom  his  principal  had  commenced,  but  failed 
to  prosecute,  the  replevin.  Otherwise,  as  to  a  question  presented 
by  him,  raising  a  defence  growing  out  of  his  relation  merely." 

§  2y.  Where,  after  payment  of  a  portion  of  a  debt,  the  whole 
was  replevied,  and  a  replevin  bond  given,  and  the  surety's  land 
was  sold  under  an  execution  on  the  bond  to  the  execution  plain- 
tiff, for  less  than  two-thirds  of  its  value  ;  an  application  to  the 
chancellor  was  the  appropriate  if  not  the  only  remedy  left  to  the 
surety,  and  he  shouhl  be  allowed  thereon  to  redeem,  although 
the  year  given  by  the  statute,  in  which  to  redeem,  had  expired.^ 

§  3.  Questions  have  often  arisen  as  to  the  precise  form  of  the 
bond  ;  and  whether,  if  not  exactly  conformable  to  statutory  re- 
quirement, it  can  be  held  valid  at  common  law.  (a)     It  is  held 

'  Brown  v.  Bris^liam,  5  Allen,  582.  5  Tonsev  v.  Risliop,  22  Iowa,  178. 

-  (iiiy  V.  Mortran,  4  Bnsli,  tKHi.  o  Porkiiis  r.  Rmiolpli,  8f,  HI.  306. 

•'   Decker  v.  Amlcrson,  ;'.'.)  Barb.  346.  "^  Crites  >\  Littleton,  23  Iowa.  205. 

•*  Ilershler  r.  Reynolds,  22  Iowa,  152.  ^  Myers  r.  Williams,  1  l)uv.  35G. 

(«)  See  Tuck  v.  Moses,  58  Maine,  401  ;  Clarke  v.  Bell,  2  Lltt.  104  ;  Meanx  v.  Rut- 
Cook  V.  Bank,   &c.,  5  J.  J.  Mar.   103;     gers,  Ky.  Dec.  341 ;  Whitteraore  y.  Jones, 


120  REPLEVIN.  [book   I. 

tliat  a  statutory  bond,  in  part  conformable  to  the  act,  is  good  for 
that  part ;  ^  and  that  statutory  bonds  of  replevin  will,  in  general, 
be  sustained  as  voluntary  bonds  good  at  common  law,  unless  the 
statute  has  expressly  declared  them  void,  or  they  have  been  ob- 
tained by  fraud,  or  by  coercion  or  oppression  colore  officii?  So 
a  replevin  bond  may  be  good  as  a  common-law  bond,  although,  by 
reason  of  its  non-conformity  to  some  statutory  requisitions,  it 
cannot  be  enforced  in  the  summary  manner  pointed  out  by  the 
statute.^  Thus  a  firm  in  Boston  brought  replevin  in  Hillsborough 
county.  New  Hampshire,  against  a  resident  of  Manchester.  The 
sheriff  of  Sullivan  county  seized  the  goods  then  in  his  jurisdiction, 
delivered  them  to  the  plaintiffs  in  that  action,  and  received  their 
bond.  Held,  the  bond,  though  not  in  strict  conformity  with  the 
statute,  might  be  binding  as  a  common-law  security.*  So  a  bond, 
in  less  than  double  the  value  of  the  property  replevied,  is  a  good 
replevin  bond  at  common  law.  If  the  plaintiff  neglects  to  comply 
with  a  judgment  for  a  return,  upon  abatement  of  the  writ  because 
of  such  defective  bond,  the  defendant  may  sue  upon  the  bond, 
even  if  the  writ  was  abated  upon  his  motion.^  So  the  validity  of 
a  bond,  given  to  replevy  a  distress  for  rent,  and  proceedings 
thereunder,  are  not  affected  by  the  fact  that  too  great  an  amount 
of  rent  was  distrained  for.  The  obligor  of  such  bond  does  not 
show  a  right  to  have  it  annulled  by  a  court  of  equity,  by  alleging 
that  he  executed  it  without  understanding  its  tenor,  and  expect- 
ing to  litigate  the  claim  for  rent.^  So  where  the  attachment  was 
for  $192.74,  and  the  description  of  the  attachment  in  the  bond  was 
$192;  held,  an  immaterial  variance,  and  susceptible  of  explana- 
tion by  parol  proof.'^     So,  in   Massachusetts,  the    condition  of  a 

1  Lamb(^en  v.  Conoway,  5  Harrinc.  1.  *  Claggett  ?'.  Richards,  45  N.  H.  360. 

2  Branch  v.  Branch,  6  Fla.  814  ;  Morse  ^  Tuck  v.  Moses,  54  Maine,  115. 
V.  Hodsdon,   5   Mass.    314  ;    Claggett  v.  6  Dean  v.  Ball,  3  Bush,  502. 
Richards,  45  N.  H.  360.  1  Mitchell  v.  Ingram,  38  Ala.  395. 

3  Mitchell  V.  Ingram,  38  Ala.  395. 

6  N.  H.  362  ;  Glassford  v.  Hackett,  3  Call,  sheriff.    De  Reguine   v.  Lewis,  3   Rob. 

193.  708. 

A  complaint  upon  a  statutory  under-  In  Nevada,  a  bond  given  on  return  of 

taking,  describing  the   undertaking  only  property  replevied,  though  required  to  be 

by  stating  that  it  corresponds  with   the  delivered  to  the  sheriff,  cannot  be  enforced 

provisions  of  the  statute,  is  defective  ;  but  by   him    as    plaintiff.      McBeth    v.    Van 

insufficient  only  on   demurrer.     Mills  v.  Sickle,  6  Nev.  134. 

Gleason,  21  Cal.  274.  Replevin  bonds  not  dated,  date  from 

Under  the   provisions  of  the   (N.  Y.)  their  delivery  to  the  sheriff,  and  no  exe- 

Code,  in  an  action  for  the  claim  and  de-  cution  can  issue  on  such  bonds  until  they 

livery  of  personal  property,  no  other  un-  are  due,  reckoning  from  delivery.     Bettis 

dertaking  can  be  required  from  the  plaintiff  v.  Bailey,  2  Bush,  G08. 
than  that   taken  and    approved    by  the 


CH.    VIII.]  REPLEVIN   BONDS.  121 

replevin  bond,  to  prosecute  the  action  at  the  couniy  court  next  to 
be  holden  at,  <fec.,  rightly  describing  the  next  term  of  the  Court 
of  Common  Pleas,  was  held  good.  The  court  remarked,  that  if 
invalid  under  the  statute,  it  would  be  good  at  common  law.^  So 
a  replevin  bond,  executed  by  the  surety  before  service,  but  not 
by  the  principal  until  after  the  return  of  the  writ  and  entry  of 
the  action,  is  good  against  both.  Although  the  defendant  in  re- 
plevin might  by  plea  in  abatement  or  motion  have  avoided  the 
process ;  yet  the  plaintiiF  in  replevin,  having  suffered  his  name  to 
be  used  to  take  property  which  did  not  belong  to  him,  permitted 
the  action  to  proceed  to  trial,  and  claimed  the  property  until  judg- 
ment was  rendered  against  him,  is  estopped  to  say  that  the  bond 
was  made  on  a  day  different  from  its  date.-  So,  under  Rev.  Sts. 
of  Maine,  c.  130,  in  order  that  the  bond  should  be  a  statute  bond, 
it  is  not  necessary  that  the  plaintiff  in  replevin  should  sign  it,  or 
that  it  should  appear  on  the  bond  to  be  given  in  his  behalf^  So 
a  replevin  bond  was  held  valid,  where  A  sued  B  and  C  for  prop- 
erty of  B  in  possession  of  C,  and  the  bond  was  made  to  B  and  C ; 
the  suit  being  dismissed,  and  judgment  rendered  against  A  in 
favor  of  the  defendants  for  costs,  and  a  return  to  B.'*  So,  if  a 
bond  recite  that  it  is  executed  upon  institution  of  the  suit ;  a 
surety  is  estopped  to  dispute  its  validity,  upon  the  ground  that 
he  executed  it  by  order  of  court  to  renew  the  sureties,  made  as 
a  condition  of  postponment,  and  without  the  knowledge  of  other 
obligors,  judgment  being  recovered  against  him,  but  in  favor  of 
the  original  sureties.^  So  the  (Connecticut)  statute  (Rev.  Stat. 
tit.  1,  §  265),  which  provides  a  form  to  be  used  in  taking  replevin 
bonds,  was  not  intended  to  prescribe  the  exact  form  of  the  bond, 
and  the  form  there  given  need  not  be  followed  strictly.*^  So 
where  the  condition  of  the  bond  was,  to  prosecute  to  effect  before 
A  B,  justice  of  the  peace,  and  the  justice  had  not  final  jurisdic- 
tion ;  held,  the  bond  was  not  void,  as  not  complying  with  the 
statute,  wliicli  requires  a  bond  to  prosecute  to  effect  generally." 
So  a  bond  in  replevin  for  a  slave,  in  Kentucky,  stipulated,  that  the 
plaintiffs  should  well  and  truly  prosecute  their  writ,  pay  all  dam- 
ages which  might  ensue  to  the  defendant,  and  be  adjudged  against 
them,  "and   also   perform  any  judgment  of  the   court."      Held 

1  Arnold  v.  Allen,  8  Mass.  147.  »  Decker  v.  Judson,  IG  N.  Y.  (2  Smith) 

2  Cady  V.  E<rgleston,  11  Mass.  282.  439. 

3  Howe  V.  Ilandlcv,  28  Maine,  241.  *>  Kersse  v.  Waterliouse,  30  Conn.  129. 
«  Story  V.  O'Dea,  23  Ind.  326.  7  lb. 


122  REPLEVIN.  [book  I. 

sufficient,  without  stipulating  specifically  for  paying  hire  and  re- 
turning the  sUive,  in  event  of  the  failure  by  the  plaintiffs  to  estab- 
Hsh  their  right.^  So,  in  Delaware,  a  bond  to  indemnify  the  sheriff, 
instead  of  "  to  prosecute  the  suit,"  is  good.^  So  an  undertaking 
given  by  the  defendant,  in  an  action  for  the  possession  of  personal 
property,  under  §  221  of  the  New  York  Code,  to  procure  a  return 
of  the  property  to  himself,  may  be  made  to  the  plaintiff  instead  of 
the  sheriff.'^  So,  under  the  Statute  of  Florida  (Thompson's  Dig. 
388),  it  is  not  necessary  that  a  replevin  bond  should  contain  a 
description  of  the  property  ;  this  must  be  in  the  affidavit.  Under 
the  same  statute,  requiring  that  the  bond  must  be  for  any  amount, 
at  least  double  the  value  of  the  property  ;  this  value  musf  be  as- 
certained before  the  declaration  has  been  filed,  and  the  plaintiff 
cannot  be  allowed,  by  putting  a  higher  value  on  it  in  his  declara- 
tion, to  invalidate  his  own  bond.  So  where  a  bond,  approved  by 
"  R.  B.,  clerk,"  and  an  affidavit,  sworn  before  "  R.  B.,  clerk  of  the 
Circuit  Court  for  Marion  county,"  appeared  to  have  been  executed 
on  the  day  the  writ  issued,  in  the  teste  of  which  the  clerk  de- 
scribed himself  as  "  R.  B.,  clerk  of  the  Circuit  Court  for  Marion 
county,"  and  filed  in  the  office  of  the  clerk  of  that  court  on  the 
same  day,  and  there  was  no  other  action  of  replevin  pending 
between  the  parties ;  held,  the  word  "  clerk  "  in  the  bond  was 
a  sufficient  designation,  it  not  being  denied  that  he  was  such 
clerk.'^  So  a  bond  is  sufficient,  although  bearing  date  the  day 
after  service  of  the  writ,  executed  by  only  two  of  the  plaintiffs, 
and  conditioned  for  a  return  in  like  good  order  as  token  replevied 
instead  of  as  when  taken.^  So,  if  there  is  a  sufficient  correspond- 
ence between  the  judgment,  execution,  and  bond  to  connect  them, 
no  motion  to  quash  can  be  sustained  for  a  variance.^  So  it  is  no 
objection  to  a  replevin  bond,  that,  in  reciting  the  judgment  on 
which  it  is  predicated,  it  omits  a  credit  entered  on  the  judgment.' 
So,  although  a  plaintiff  in  Kentucky  may  quash  a  replevin  bond, 
if  all  the  defendants  in  the  execution  have  not  united  in  it,  the 
obligors  cannot  complain  on  this  ground.^  (ci) 

1  Cooper  V.  Brown,  7  Dana,  333.  ^  Chandler  v.  Smith,  14  Mass.  313. 

-  Lambden  v.  Conaway,  5  Harring.  1.  "^  4  Monr.  132. 

3  Slack  V.  Heath,  4  E.  D.  Smith,  95.  7  Doe  v.  Cminingham,  6  Blackf.  430. 

4  Branch  v.  Branch,  6  Fla.  314.  8  Stevens  v.  Wallace,  5  Monr.  404. 

(n)  A  new  replevin  bond  may  be  exe-  defective  bond  to  be  amended,  or  a  new 

cuted,  in  order  to  release  a  surety  on  the  bond  to  be  executed,  pending  a  motion  to 

first  bond,  whom  it  is  desired  to  use  as  a  dismiss  the  action  for  want  of  a  sufficient 

witness.     Patterson    v.   Fowler,  '22   Ark.  bond.     Smith  v.  Howard,  23  Ark.  203. 
396.     So  it  is  error  to  refuse  to  permit  a 


CH.    VIII.]  REPLEVIN    BONDS.  123 

§  4.  But,  in  a  late  case,  it  is  held  a  fatal  objection  to  a  replevin 
bond,  that  tlie  name  of  the  defendant  is  not  inserted.^  And  a  re- 
plevin bond,  made  to  the  replevying  oflicer,  instead  of  the  defend- 
ant in  replevin,  is  held  void.  It  is  given  to  one  who  had  no  lawful 
authority  to  take  it,  and  the  purpose  and  effect  of  it  were  to  aid 
and  abet  him  in  a  trespass.  It  does  not  belong  to  that  class  of 
instruments  which,  tliough  deviating  from  the  form  prescribed, 
are  held  good  at  common  law,  where  the  parties  are  right,  and 
the  bond  itself  substantially  correct.^  (a) 

§  5,  In  Delaware, —  and  this  is  doubtless  the  general  rule, — 
the  bond  should  be  taken  in  an  amount  sufficient  to  secure  the 
return  of  the  goods  attached,  or  an  equivalent  value.''  But  it  is 
no  sufficient  ground  to  quash  a  writ  of  replevin,  that  the  officer 
has  taken  bond  for  a  larger  sum  than  the  writ  directed.^ 

§  6.  In  Massachusetts,  no  action  lies  on  a  bond,  the  penalty  of 
which  is  "  double  the  value  of  the  property  hereinafter  mentioned 
to  be  replevied,"  to  be  fixed  by  appraisers,  without  stating  the 
value  ;  especially  if  never  appraised,  and  afterwards  agreed 
between  the  parties.^  So  (as  also  in  Vermont),  if  the  bond  does 
not  contain  a  penalty  in  a  definite  sum,  but  merely  states  it  as 
"  double  the  value  of  the  goods,  or  the  property  hereinafter 
named  to  be  replevied ; "  the  action  will  be  dismissed,  upon  a 
motion  made  at  the  proper  stage  of  the  case.^ 

§  7.  In  South  Carolina,  the  assignee  of  a  replevin  bond  may  sue 
upon  it  in  his  own  name."  In  Delaware,  the  assignment  of  a 
replevin  bond,  authorized  by  §  2656  of  the  Code,  relates  to  bonds 
taken  in  cases  o^  distress  for  rent.  It  does  not  extend  to  replevin 
bonds  generally.     Suit  cannot,  therefore,  be  brought  in  such  case 

1  Artcr  V.  People,  54  111.  228.  5  Case  v.  Pettee,  5  Gray,  27. 

-  Purjile  >:.  Puri)!e,  5  Pick.  226.  6  Clark  v.   Connecticut,   &c.,  6    Gray, 

3  Plunkett  V.  Moore,  4  Har.  379.  363  ;  Bennett  v.  Allen,  30  Vt.  684. 

4  Clapp  V.  Guild,  8  Mass.  153.  1  City  Council  v.  Price,  1  M'Cord,  299. 

(a)  A  statute,  naming  the  sheriff  as  the  executed  an  alias  writ  without  taking  a 
party  to  whom  a  replevin  bond  shall  be  new  bond;  held,  an  action  could  be  main- 
given,  means  only  that  the  bond  shall  be  taiiicd  on  the  bond,  after  failure  to  comply 
given  to  the  ofticer  serving  the  writ,  and  a  with  a  judgment  tor  a  return.  Petrie  v. 
bond  given  to  the  coroner  may  therefore  Fisher,  4-3  III.  442.  See  Claggett  v.  Rich- 
be  valid.   Spoer  c.  Skinner,  35  III.  2S2.  The  ards,  45  N.  H.  360. 

object  of  a  replevin  bond  is  not  merely  to  Under  (N.  C.)    Rev.   Code,  c.  7,  §  5, 

indemnify  the  slieriff,  but  also  to  furnish  requiring    a  "bail-bond"  to    the   sheriff, 

an  additional  remedy  to  the  defendant,  in  a  defendant  does  not  acquire  a  right  to 

case  the  plaintiff  fails  to  maintain  his  suit,  replevy  and  plead,  by  executing  a  bond 

Hence,  where  a  sheriff  took  a  bond,  and,  payable   to  the  jjlaintifi;   coniiitioned   on 

his  term  of  office  expiring,  the  writ  was  the  defendant's  appearance,  &c.     Barry  v. 

returned  unexecuted,  and   his   successor  Sinclair,  Phill.  (N.  C.)  L.  7. 


12-4  REPLEVIN.  [book   I. 

by  the  assignee.  But  this  matter  is  amendable  under  c.  112 
of  the  Code.^  In  New  York,  a  replevin  bond,  duly  executed  by 
the  coroner,  may  be  assigned  by  him,  pursuant  to  2  R.  S.  533, 
§  64  ;  and  the  assignee  may  sue  thereon  in  his  own  name.^  In 
California,  under  Stat.  1850,  c.  121,  §  2,  a  replevin  bond  may  be 
assigned  by  the  sheriff  to  the  creditor."^ 

§  8.  In  Vermont,  an  officer,  who  serves  a  replevin  writ  in  behalf 
of  a  defendant,  to  recover  possession  of  property  attached,  is 
bound  to  take  sureties  on  the  bond  who  are  at  the  time  actually 
responsible  for  its  amount.  It  is  not  enough  that  they  are  in 
good  credit  and  apparently  responsible.  But,  on  the  other  hand, 
he  is  not  liable,  if,  being  actually  responsible  when  taken,  they 
cease  to  be  so  before  the  bond  is  put  in  suit.  The  fact,  that  the 
attorney  of  the  plaintiff  in  the  original  suit  acts  also  as  the  at- 
torney for  the  defendant  in  making  the  replevin  writ,  and  draws 
up  and  consents  to  the  bond,  does  not  necessarily  discharge  the 
officer  from  such  liability,  unless  the  officer  were  aware  of  this 
fact,  nor  unless  such  attorney  either  act  in  behalf  of  the  plaintiff 
in  consenting  to  the  bond,  or  give  the  officer  good  reason  to 
believe  that  he  consents  to  it  in  his  behalf.'* 

§  9.  Although  a  statute  requires  two  sureties,  the  party  for 
whose  benefit  the  bond  is  taken  may  waive  the  objection  that 
there  is  only  one.  And  if  he  does,  the  obligors  are  bound.  Such 
bond  is  not  within  the  statute  declaring  void  certain  bonds,  agree- 
ments, &c.,  taken  by  sherifis  and  other  officers  colore  officii.^ 

§  10.  Where  there  is  but  one  surety,  the  defendant  may  move 
to  set  aside  the  proceedings,  and  is  not  bound  to  except.  The 
plaintiff,  however,  on  payment  of  costs,  will  be  allowed  to  amend, 
by  filing  a  new  bond,  with  sureties,  and  the  sureties  justifying.^ 

§  11.  Where  one  surety  was  sufficient  when  the  bond  was 
executed,  and  the  other  not,  and  the  former  is  not  proved  to  have 
become  insufficient  since  ;  the  officer  is  not  liable.' 

§  12.  It  is  no  ground  for  dismissing  an  action  of  replevin,  that, 
in  the  bond,  the  sureties  are  described  as  partners,  and  sign  and 
seal  in  their  partnership  names.  A  motion  to  dismiss  is  founded 
upon  errors  apparent  on  the  face  of  the  bond.  The  bond  is  to  be 
construed  in  connection  with  the  return  of  the  officer,  that  it  was 

1  Waples  V.  Mcllvaine,  5  Har.  381.  5  ghaw  v.  Tobias,  3  Comst.  188. 

2  Acker  v.  Finn,  5  Hill,  293.  6  Whaling  v.  Shales,  20  Wend.  673. 

3  Wingate  v.  Brooks,  3  Cal.  112.  ^  Lord  v.  Bicknell,  35  Maine,  53. 

4  Bank,  &c.  i'.  Rutland,  33  Vt.  414. 
See  §  14. 


CH.    VIII.]  REPLEVIN   BONDS.  125 

duly  executed.     Any  question,  in  I'elation  to  the  bond,  should  be 
raised  by  plea  in  abatement.^ 

§  13.  It  is  held  in  New  York,  that,  in  a  suit  upon  a  replevin 
bond,  the  plaintiff  must  prove  the  return  of  an  execution  unsat- 
isfied in  whole  or  in  part,  though  the  plea  of  ?i07i  est  factum  alone 
bo  interposed.^  But  in  Massachusetts,  after  judgment  for  a  re- 
turn, an  action  lies  upon  the  bond,  without  a  demand  on  a  writ  of 
return.^  And,  in  Rhode  Island,  a  defendant  in  replevin  may  bring 
an  action  upon  the  bond  immediately  upon  recovering  judgment 
in  the  suit,  without  reference  to  the  issue,  return,  or  return-day  of 
the  execution.  The  recovery  of  damages  and  costs,  for  the  pay- 
ment of  which  the  bond  provides,  "  refers  to  the  judgment^  and 
not  to  the  execution^  which  is  the  means  only  of  enforcing  it.  It 
is  because  these  means  may  fail,  that  the  statute  requires,  in  addi- 
tion, a  bond  with  sureties.  The  liability  of  the  plaintiffs  in  re- 
plevin was  immediately  consequent  upon  the  judgment  against 
them,  enforceable  at  any  moment,  under  the  execution.  By  the 
terms  of  the  bond  sued,  their  liability  and  that  of  their  sureties 
was  precisely  the  same,  the  bond  giving  an  additional  remedy 
and  further  security  for  it;  and  neither  can  set  up  any  defence, 
except  performance  of  the  conditions.  The  peculiar  rights  and 
obligations  of  bail  can  shed  no  light  upon  the  liabilities  of  either 
the  principals  or  sureties  of  a  replevin  bond."  *  (a) 

§  14.  The  sureties  are  not  discharged  by  delay  in  the  prosecu- 
tion of  the  suit  without  their  knowledge,  although  assented  to 
by  the  defendant,  unless  it  be  unreasonble  and  improper.  "Where 
the  delay  is  unreasonable  and  improper,  and  is  by  consent  of  the 
defendant  in  the  suit,  he  cannot  have  an  action  on  the  bond  for 
want  of  prosecution  merely.  But  mere  delay,  however  long,  and 
although  assented  to  by  the  defendant  without  any  special  reason, 
is  no  defence  in  favor  of  the   sureties,  where  the  breach  com- 

1  Judson  V.  Adams,  8  Cush.  55G.  *  Potter   v.  James,   7   R.   I.  312;  per 

^  Cuwdin  V.  Stanton,  12  Wend.  120.         Ames,  C.  J.  31G,  317. 
3  Wright  V.  Quirk,  106  Mass.  44. 

(a)  A  constable  attached  certain  goods  an  action  had  accrued  to  him  to  recover 

in  a  suit  for  S80.82  and  costs,  and  A  re-  tlie  amount  of  the  judgment  in  the  original 

plevied  the  property,  giving  bond  to  ap-  suit.     Held,  as  the  jilaintirt"  in    the  suit 

pear  on  the  return  day,  and  prosecute  his  did  not  ask  for  a  judgment  ih-  ntorno,  and 

suit,  &c.      Tiie  plaintif?',  suing  upon   the  have  the   damages  assessed,  lie  did   not 

bond,  assigned  a  breach,  in  that  A  did  not  state  facts  entitling  him  to  recover  the 

prosecute  his  suit,  hut  allowed  the  same  judguient  required.      Clark  v.  Xorton,  G 

to  be  dismissed  and  judgment  for  costs  Minn.  412. 
also  to  be  taken  against  liim ;   wherefore 


126  REPLEVIN.  [book   I. 

plained  of  is  non-payment  of  the   sum  of  money   recovered  by 
the  defendant  in  the  replevin  suit.^ 

§  15.  In  California,  the  proper  judgment  in  replevin  is,  that 
the  party  redeliver,  or  pay  the  value  as  found  by  the  jury,  with 
damages  and  costs.  The  surety  is  responsible,  only  on  failure  of 
the  plaintiff  to  respond  to  the  judgment,  and  therefore,  in  an 
action  on  the  bond,  non-performance  of  both  alternatives  of  the 
judgment  must  be  averred.^ 

§  15  a.  Sec.  177  of  the  (Cal.)  Practice  Act,  and  the  decisions 
holding  that  a  defendant  in  replevin,  in  order  to  render  the  sure- 
ties upon  the  undertaking  liable  for  the  value  of  the  property, 
must  demand  a  return  in  the  answer  and  obtain  a  judgment 
directing  it,  do  not  apply  to  actions  dismissed  before  trial  for 
want  of  prosecution.  In  such  cases,  the  defendant  may,  in  his 
action  on  the  undertaking,  seek  a  return  of  the  property  and  com- 
pensation in  damages,  and  the  pleadings  in  the  replevin  suit  are 
immaterial  to  the  defendant's  rights  in  his  suit  on  the  undertaking.'^ 

§  15  h.  In  a  suit  against  the  sureties  on  a  replevin  bond,  the 
complaint  must  aver  that  the  value  of  the  property  was  found  by 
the  jury,  and  that  an  alternative  judgment  was  rendered  as  pro- 
vided in  the  Practice  Act,  §  200.^ 

§  16.  In  Missouri,  as  against  sureties,  §  9  of  art.  8  of  Act  of 
1849  provides  the  exclusive  statutory  remedy.  The  obligation 
of  sureties  under  §  8  of  the  Practice  Act  of  1849  cannot  be  ex- 
tended to  the  payment  of  double  damages  for  detention.'^  In 
Kentucky,  the  liability  of  a  defendant,  upon  a  bond  executed  to 
the  plaintiff,  according  to  the  provisions  of  the  Civil  Code,  §  215, 
"  to  perform  the  judgment  of  the  court  in  the  action,"  extends 
only  to  such  judgment  as  the  court  may  render  on  the  claim  for 
possession  of  the  property  sued  for.^ 

§  17.  The  measure  and  amount  of  damages,  to  be  recovered 
upon  a  replevin  bond,  are  almost  universally  regulated  in  the 
different  States  by  express  statutes ;  which  are  by  no  means  uni- 
form, even  in  reference  to  the  same  facts,  and  the  provisions  of 
which  vary  with  the  varying  circumstances  of  replevin  suits."  (a) 

1  Daniells  v.  Patterson,  3  Comst.  47.  5  Collins  v.  Hough,  20  Mis.  149. 

See  Clary  v.  RoUand,  24  Cal.  147  ;  §  8.  «  McKee  v.  Pope,  18  B.  ISIon.  548. 

-  Nickerson  v.  Cliatterton,  7  Cal.  5G8.  "  See  Tuck  v.  Moses,  58  Maine,  461 ; 

3  Mills  V.  Gleason,  21  Cal.  274.  Mattoon  v.  Pearce,  12  Mass.  406. 
*  Clary  v.  Kolland,  24  Cal.  147. 

(a)  A  replevin  bond   is   only  given  to     which  may  be  adjudged  him  in  the  par- 
indenmity  the   obligee  for  any  damages    ticular  suit  in  which  the  bond  has  been 


CH.    VIII.]  REPLEVIN   BONDS.  127 

§  18.  If,  ill  judgment  for  return,  there  is  no  assessment  of  dam- 
ages for  detention,  and  if  upon  the  restitution  writ  no  return  was 
obtained  ;  such  damage  may  be  assessed  and  allowed  in  an  action 
upon  the  bond,  and  will  be  computed  from  the  original  taking.^ 

§  19.  The  plaintiff  in  replevin  cannot,  by  discontinuance  or 
nonsuit,  prevent  a  judgment  against  him  for  damages  or  for 
the  return  of  the  property.  A  voluntary  nonsuit  is,  however, 
a  breach  of  the  condition  in  the  bond  to  prosecute  with  effect, 
and  on  such  breach  the  obligee  may  recover  full  damages  within 
the  penalty,  without  first  obtaining  a  judgment  for  return  or  for 
damages."  But  if  the  suit  was  dismissed  by  the  i)laiiitiff  for 
defect  in  the  aiKdavit,  and  the  title  is  shown  to  be  in  a  third 
person,  only  nominal  damages  are  recovered.*^  And  though  it  is 
no  defence  to  an  action  on  the  bond,  that  the  defendant  in  replevin 
forcibly  took  the  property  from  the  plaintiff;  it  might  perhaps 
bar  a  recovery  of  the  value  of  the  property.* 

§  20.  In  case  of  nonsuit,  damages  for  failure  to  return,  though 
not  for  the  original  taking  and  detention,  may  be  assessed  in  an 
action  on  the  bond.^ 

§  21.  In  Illinois,  the  defendant  may,  under  the  Act  of  March  1, 
1847, '^  concerning  })ractice  "  (Laws,  1847,  62),  plead  specially, 
that  the  plaintiff  ought  not  to  recover  more  than  nominal  dam- 
ages, for  that  the  merits  of  the  case  were  not  tried  ;  and  also  the 
defendant's  title. ^ 

§  21  a.  In  Indiana,  in  an  action  upon  a  replevin  bond,  where  the 
title  to  the  property  was  not  determined  in  the  replevin  suit,  and 
the  title  and  right  of  possession  are  in  a  person  other  than  the 
obligee,  he  is  only  entitled  to  nominal  damages.  A  plea,  as  to  all 
except  nominal  damages,  of  title  in  himself,  is  good.' 

§  22.  Where  the  value  of  the  property  is  witiiin  the  jurisdic- 
tion, the  court  may  render  judgment  on  the  bond  for  more  than 
the  sum  to  which  the  jurisdiction  is  limited.^ 

§  2o.   In  Massachusetts,  goods  attached  were  replevied,  and  the 

1  Sniitli  r.  Dilliimliam,  33  Maine,  384.  *  Ginaca  v.  Atwood,  8  Cal.  446. 

2  Ber<jli<)(}  r.  Heckwolt;  2G  Mis.  611.  «  Ciiinn  v.  McCoy,  19  HI.  (i()4. 

8  Stockwell  r.  liyiUQ,  22  Iiul.  6.  7  Stockwell  r.  Bvrne,  22  Ind.  G. 

<  Story  V.  O'Dea,  23  lud.  320.  8  Berghoffr.  Ileckwolf,  20  Mis.  511. 

given.     Boyer  v.  Fowler,  1  Wash.  Terr,  bond  given  by  defendant,  witliout  a  pre- 

IIU.  vious    judgment  against    tlio   defendant, 

A  judgment  in  replevin  under  (N.  C.)  is  eri'oneous.     Scott  v.  Elliott,  G3  N.  C. 

Kev.  Code,  c.  'J8,  for  the  penalty  of  the  215. 


128  REPLEVIN.  [book  I. 

plaintiff  in  replevin  became  nonsuit,  and  in  the  mean  time  judg- 
ment was  recovered  and  execution  issued  and  returned  unsatisfied 
in  the  original  action.  In  an  action  upon  the  bond,  held,  that,  in 
assessing  damages,  interest  should  be  cast  on  the  valuation  of  the 
property  in  the  writ  of  replevin,  at  the  rate  of  six  per  cent,  from 
the  time  when  the  property  was  replevied  until  the  issuing  of  the 
execution  in  the  original  action,  and  at  the  rate  of  twelve  per 
cent,  thereafter,  until  the  entering  up  judgment  in  the  action  upon 
the  bond.^ 

§  23  a.  In  Illinois,  interest  is  recoverable  in  an  action  on  a 
replevin  bond,  where  the  defendant  has  not  returned  the  prop- 
erty.2 

§  24.  Where  the  goods  when  attached  were  subject  to  duties, 
whicli  the  plaintiff  in  replevin  paid  ;  held,  such  interest  should 
be  cast  only  upon  the  difference  between  the  amount  so  paid  and 
the  valuation  in  the  writ  of  replevin,^ 

§  24  a.  The  measure  of  damages  is  the  value  of  the  goods,  and 
not  the  price  at  which  the  defendant  may  have  sold  them.* 

§  24  b.  Where  in  an  action  of  replevin  the  defendant  has 
judgment  for  a  return,  but  the  value  of  the  property  is  not  ascer- 
tained by  the  verdict,  as  the  statute  requires  ;  the  defendant  may 
still  have  his  action  on  the  bond  to  recover  the  value.^ 

§  25.  In  debt  on  a  replevin  bond,  the  plaintiff  is  entitled  to 
recover  the  value  of  the  goods  replevied,  with  the  damages  and 
costs  from  the  date  of  the  judgment  in  replevin  to  the  time  of 
rendering  judgment  on  the  bond.^ 

§  26.  A  plaintiff,  in  replevin  of  furniture,  horses,  &c.,  sold  part 
thereof,  and  so  used  other  parts  as  to  lessen  their  value.  The 
defendant  obtained  judgment  for  a  return,  and  twelve  per  cent, 
damages  and  costs,  which  were  paid.  Twelve  months  after  such 
judgment,  the  defendant  sued  out  a  writ  of  return,  upon  which 
the  officer  returned  that  he  could  not  find  the  property.  The 
defendant  then  brought  his  action  on  the  bond.  Held,  he  was 
entitled  to  recover  the  value  of  the  property,  as  set  out  in  the 
bond,  with  six  per  cent,  damages  from  the  time  of  the  judgment 
for  a  return." 

1  Pliiggeford  V.  Ford,  11  Pick.  223.  See  ^  Schrader  v.  Wolflin,  21  Ind  238.  See 
Wood  V.  Braynard,  9  ib.  322;  Mass.  Gen.     Scott  r.  Elliott,  63  N.  C.  215. 

Sts.  5  Whitney  v.  Lehmer,  26  Ind.  503. 

2  Plopkins  V.  Ladd,  35  Dl.  178.  «  Arnold  v.  Baily,  8  Mass.  145. 

3  Ib.  7  Parker  v.  Simonds,  8  Met.  205. 


CH.    VIII.]  REPLEVIN   BONDS.  129 

§  27.  Where  the  plaintiff  in  replevin  had  become  nonsuit,  the 
defendant  cannot  show  property  in  the  plaintiff  in  replevin  in 
reduction  of  damages.^ 

§  28.  The  finding  of  the  jury  as  to  the  value  of  the  property 
will  not  be  evidence  of  its  value  against  the  plaintiff,  or  his  sure- 
ties on  the  bond,  except  in  such  actions  of  replevin  as  are  author- 
ized by  statute.^ 

§  29.  In  Maine,  the  damages  recovered  by  an  officer,  in  a  re- 
plevin suit  brought  against  him,  in  which  the  property  attached 
is  replevied,  being  recovered  in  trust,  are  not  conclusive  upon  the 
parties  in  a  suit  upon  the  replevin  bond.^  And,  in  a  suit  upon  a 
replevin  bond,  the  plaintiff  is  not  estopped  from  showing,  that  the 
actual  value  of  the  property  exceeded  the  sum  inserted  by  the 
defendant  in  his  writ  and  bond,  if  the  plaintiff  did  not  assent  to 
this  estimate  ;  and  the  plaintiff  is  also  entitled  to  damages  for 
detention.^ 

§  29  a.  In  a  suit  upon  the  bond,  where  attached  property 
had  been  replevied,  and  judgment  rendered  for  a  return ;  the 
defendant  cannot  set  up,  by  way  of  recoupment  or  set-off,  a  judg- 
ment against  the  officer  for  a  false  return  upon  the  writ  of  attach- 
ment.^ 

§  29  i.  In  suit  upon  the  bond,  judgment  is  rendered  for  the 
penalty,  and  execution  issues  for  the  amount  due,  which  either 
party  may  require  to  be  assessed  by  the  jury.  The  bond  is  evi- 
dence, though  not  conclusive,  of  the  value  of  the  property,  as 
against  the  obligors.  The  return  and  appraisal  are  not  evidence. 
The  testimony  of  witnesses  as  to  the  value  is  competent.^ 

§  30.  If  a  horse  attached  and  replevied  dies  pending  the  suit, 
without  any  one's  fault,  the  plaintiff  in  replevin  is  discharged 
from  his  liability  upon  the  bond  for  a  return." 

§  31.  An  absolute  release  "  of  all  demands  whatever,"  executed 
by  the  plaintiff  to  the  principal  obligor  of  a  replevin  bond  on 
which  the  suit  was  brought,  is  a  discharge  of  the  bond.** 

§  32.  A  surety  in  a  replevin  bond,  conditioned  that  his  princi- 
pal "  shall  abide  the  judgment  of  the  court,"  is  discharged  by  an 
amicable  submission  of  all  matters  in  dispute  to  arbitrators,  not 

•  Sniallwood  v.  Norton,  2  App.  83.  ^  -Wright  v.  Quirk,  105  Mass.  44. 

2  Gordon  v.  Williamson,  1  Sjiencer,  77.  ^  lb. 

3  IIowc  r.  Handlev,  "AS  Maine,  241.  '  .Melvin  i-.  Winslow,  1  Fairf.  307.    See 

*  Tliomas  v.  Spofford,  4G  Maine,  408.  Carpenter  v.  Stevens,  12  Wend.  589. 
See  §  33  a.  »  Thomas  v.  Wilson,  0  Blackf.  203. 

V 


130  REPLEVIN.  [book  I. 

under  rule,  on  whose  award  no  judgment  of  court  was  or  could 
be  entered. 1 

§  32  a.  But  where  an  action  of  replevin  was  submitted  by 
rule  of  court  to  a  referee,  who  rendered  an  award  that  the  de- 
fendant have  judgment  for  a  return,  with  damages,  the  costs  of 
the  reference  and  of  court,  upon  which  judgment  for  a  return 
was  entered,  and  the  plaintiff  refused  to  return  the  property :  in 
an  action  on  the  bond,  held,  judgment  should  be  entered  for  the 
plaintiff  for  the  penalty  of  the  bond,  with  interest  from  breach ; 
and  execution  issue  for  the  value  of  the  property  at  the  date  of 
the  demand  for  restoration,  with  interest ;  and  also  for  the  damages 
and  costs  awarded  by  the  referee,  with  interest,  provided  execu- 
tion be  not  awarded  for  a  sum  exceeding  the  judgment.'^ 

§  33.  A  replevin  bond  is  discharged  by  the  rendition  and  dis- 
charge of  a  judgment  in  the  replevin  suit,  on  a  verdict  for  the 
defendant  that  "  defendant  recover  his  costs."  ^ 

§  33  a.  It  may  be  shown,  in  mitigation  of  damages,  that  the  plain- 
tiff has  ceased  to  be  interested  in  the  property.*    So  a  judgment  in 
replevin  does  not  conclude  the  obligors  in  the  bond  from  proving, 
by  the  proceedings  in  the  cause   or  aliunde,  the  character  of  the 
possessory  right  upon  which  the  plaintiffs  in  the  action  on  the 
bond  recovered  in  the  replevin  suit.     If  the  parties  were  land- 
lord and  tenant,  and  the  subject  of  suit  was  the  crop  growing  upon 
the  land,  which  was  let  on  shares;  this  shows  a  qualified    prop- 
erty or  joint  right  of  possession,  which  would  defeat  the  action  of 
replevin  by  the  tenant,  and  at  the  same  time  dnniuish   the  claim 
for  damages  on  the  part  of  the  landlord,  founded  on  his  primd 
facie  right  to  the  appraisement,  showing  that  he  was  entitled  to 
but  a  moiety  of  the  damages.    Such  testimony  is  therefore  compe- 
tent to  rebut  the  primd  facie  case  of  the  plaintiff  on  the  bond.^  So 
an  action  on  a  replevin  bond  may  be  maintained,  if  judgment  was 
rendered  for  the  defendant  in  the  action  in  which  it  was  given, 
and  an  order  for  return  was  passed  and  has  not  been  complied 
with  ;  but  it  may  be  proved,  in  mitigation  of  damages,  that  the 
action  of  replevin  was  defeated  solely  because  it  was  prematurely 
commenced.*^  (a) 

1  Eldred  v.  Bennett,  33  Penn.  183.  5  Mason  v.  Sumner,  22  Md.  312.     See 

2  Leighton  v.  Brown,  98  Mass.  515.  §  29. 

3  Chambers  v.  Waters,  7  Cal.  390.  ^  Davis  v.  Harding,  3  Allen,  302. 
*  Tuck  V.  Moses,  58  Maine,  461. 

(a)  A  replevied    from  B    a  steamboat    giving   him  a  bond  of  indemnity.     The 
of    which  A  and    B  were  part  owners,    steamboat  was  afterwards  libelled  and  sold 


CH.   VIII.]  REPLEVIN  BONDS.  131 

§  34.  When  the  condition  of  a  bond  is  broken  by  a  faihire  to 
deliver  up  the  property  on  demand,  after  judgment  ior  a  return, 
a  discharge  in  insolvency,  of  a  surety  on  the  bond,  from  all  debts 
due  at  a  time  previous  to  such  demand,  though  subsequent  to  the 
commencement  of  the  action  of  replevin,  is  no  bar  to  an  action 
against  him  on  the  bond.^ 

§  35.  To  an  action  against  a  surety  in  a  replevin  bond,  it  is  no 
answer,  that  the  principal  has  since  become  bankrupt  and  ob- 
tained a  discharge ;  and  that,  the  property  in  the  chattels  having 
by  force  of  the  commission  of  bankruptcy  vested  in  the  commis- 
sioners, it  had  become  by  the  act  of  law  impossible  to  fulfil  the 
condition  of  the  bond.  The  court  remark :  "  The  discharge  of 
the  bankrupt  does  not  .  .  .  release  or  discharge  his  partner,  or 
any  person  bound  with  him  for  the  same  debt.  .  .  .  The  impos- 
sibility of  retaining  the  goods  ...  is  not  the  act  of  law,  indepen- 
dent of  the  bankrupt's  default.  It  is  from  his  becoming  a  bankrupt 
that  the  title  of  the  commissioners  to  his  goods  is  derived.  .  .  . 
By  the  operation  of  the  bankrupt  law  this  attachment,  or  the 
effect  of  it,  for  the  benefit  of  the  creditor  of  the  bankrupt,  is  per- 
haps avoided.  This  event  may  be  important  to  be  considered  in 
determining  in  chancery  what  damages  are  to  be  awarded."  ^ 

§  36.  Where  goods  were  replevied  from  an  attaching  officer, 
and  it  appeared  that  the  plaintiff  in  replevin  was  a  wrong-doer, 
without  title  to  any  part  of  the  goods ;  in  an  action  upon  the 
bond,  the  defendant  cannot  show  in  defence  the  invalidity  of  the 
attachments,  nor  claim  that  the  officer,  after  paying  off  the  attach- 
ments, was  accountable  for  the  residue  of  the  property  attached 
to  him.  Nor  could  a  mere  release  to  the  officer,  by  the  debtor,  of 
all  claim  to  the  goods,  inure  to  the  benefit  of  the  defendant.^ 

§  37.  The  plaintiff  in  a  replevin  suit,  in  which,  the  judgment 
was,  that  the  property  should  be  returned,  cannot  avoid  a  recov- 
ery against  him  on  the  replevin  bond,  by  showing  that  the  prop- 
erty belonged  to  a  stranger.^  So  in  debt  upon  a  replevin  bond 
against  the  surety,  the  defendant  cannot  plead  that  the   goods 

1  Sleeper  v.  Miller,  7  Cush,  594,  n.  ^  Farnham  v.  Moore,  8  Sliep.  508. 

2  Flagg  V.  Tyler,  6  Mass.  33,  per  Sew-         *  Smith  v.  Lisher,  23  Ind.  500. 
aU,  J.,  35. 

by  the  marshal,  in  satisfaction  of  claims  of  or  losses  incurred  on  the  vessel  after  she 

other  parties.     Held,  the  price  could  not  was   replevied.      Ackerman    v.  King,  20 

aftect  tlie  amount  H   was  entitled  to  re-  Tex.  'i'Jl. 
cover,  and  B  was  not  bound  by  any  debts 


132  REPLEVIN.  [book   I. 

were  the  proper  goods  of  the  plaintiff  in  replevin ;  and  were  at- 
tached and  held  as  such  by  the  defendant  in  replevin,  who  was  a 
dejmty-sheriff,  upon  mesne  process  against  the  plaintiff  in  re- 
plevin. The  principal  cannot  be  admitted  to  say,  in  his  own 
defence,  that  he  sued  his  writ  against  laAv ;  and  the  surety  is 
responsible  to  the  same  extent.^ 

§  37  a.  After  final  trial  and  judgment  for  a  return,  in  a  suit 
on  the  bond,  the  defendant  cannot  avoid  a  judgment  for  the  value 
by  showing  title  in  a  stranger.^  So  the  obligor  is  estopped  from 
showing  title  to  the  property  in  another  than  the  defendant  in 
the  attachment ;  ^  or  from  demurring  to  the  declaration,  for  not 
alleging  that  the  justice  before  whom  the  replevin  suit  was  brought 
and  tried  had  jurisdiction.* 

§  37  b.  Evidence  is  inadmissible,  in  defence,  to  show  the  ap- 
praisement of  the  property  by  the  appraisers  on  the  replevin 
sui  .^ 

§  38.  The  plaintiff  may  recover  damages  for  detention,  although 
not  assessed  in  the  judgment  in  the  replevin  suit.^ 

§  39.  Where,  in  replevin  before  a  justice  of  the  peace,  a  de- 
fendant goes  to  trial  without  objection  to  the  bond,  a  defect  in 
the  bond,  in  not  being  for  double  the  value  of  the  property,  is 
waived." 

§  40.  Where  the  right  of  property  has  been  tried,  it  cannot  be 
re-tried  in  a  suit  on  the  bond.^  That  the  defendant  had  com- 
menced his  action  before  a  tribunal  incompetent  to  try  the  matter 
in  dispute,  is  no  defence ;  and  the  plea,  that  the  title  to  the  prop- 
erty was  in  him,  is  bad.^ 

§  41.  In  New  York,  it  is  no  defence  to  an  action  against  sure- 
ties in  a  replevin  bond,  that  they  were  excepted  to,  and  failed  to 
justify.  It  is  doubted  whether  the  complete  substitution  of  new 
bail,  as  a  consequence  of  the  exception,  would  constitute  a  de- 
fence.^" 

§  41  a.  A  levied  on  property  belonging  to  B,  on  execution 
against  B  and  C,  principal  and  surety.  D  claimed  this  property, 
and  brought  a  replevin  suit  for  it,  in  which  judgment  was  ren- 
dered against  him.    The  property  was  not  returned  to  A,  but  went 

1  Flagg  V.  Tyler,  3  Mass.  303.  ^  Thomas  v.  Spofford,  46  Maine,  408. 

2  Smith  V.  Lisher,  23  Ind.  500.  ''  Spencer  v.  Dickerson,  15  Ind.  368, 
a  Mitchell  V.  Ingram,  38  Ala.  395.  «  Denny  v.  Reynolds,  24  ib.  248. 

*  Bates  V.  Schoonover,  43  111.  494.  9  McDermott  v.  Isbell,  4  Cal.  113. 

5  Kafer  v.  Harlow,  5  Allen,  348.  i"  Van  Duyne  v.  Coope,  1  Hill,  557. 


CH.    VIII.]  REPLEVIN    BONDS.  133 

into  the  hands  of  B,  and  a  suit  was  commenced  on  the  bond.  A 
then  brought  suit  on  the  original  judgment  against  B  and  C,  re- 
covered judgment,  and  took  out  execution,  which  was  satisfied  by 
the  surety,  C.  Held,  the  payment  of  the  original  debt  to  A  dis- 
charged D  from  all  liability  on  the  bond.^  But  it  is  no  defence 
to  an  action  on  a  replevin  bond,  in  which  the  plaintiff  seeks  to 
recover  the  value  of  the  replevied  property,  that  he  took  out  and 
collected  an  execution  for  costs,  on  the  judgment  in  the  replevin 
suit.2 

§  42.  In  California,  it  must  be  alleged  that  the  property  was 
restored  to  the  plaintiff  in  replevin.^ 

§  43.  In  an  action  upon  a  statutory  security,  as  a  replevin  bond, 
the  declaration  need  not  aver  in  terms  that  the  bond  was  taken 
in  pursuance  of  the  statute.  It  is  enough  if  the  instrument,  as 
set  forth,  is  in  accordance  with  the  statute.* 

§  44.  When  the  action  is  on  a  bond  executed  to  a  coroner,  the 
declaration  need  not  state  that  the  writ  of  replevin  was  directed 
to  the  coroner.  That  fact  will  be  presumed  from  the  giving  of 
the  bond  to  him,  the  commencement  of  the  suit  in  replevin,  and 
the  taking  of  the  property  under  the  writ.'^ 

§  45.  In  debt  on  a  replevin  bond,  the  defendants  pleaded  per- 
formance, generally  ;  the  plaintiff  replied,  that  he  had  judgment 
for  a  return,  and  that  no  return  had  been  made.  The  defendants 
rejoined,  that  the  plaintiff  in  replevin  reviewed  the  action ;  that 
the  present  plaintiff  had  judgment  and  execution,  on  which  the 
chattel  replevied  was  seized  and  sold.  The  rejoinder  was  ad- 
judged bad,  as  being  a  departure  from  the  plea  in  bar.*^ 

§  45  a.  In  an  action  on  the  bond,  upon  a  denial,  the  plaintiff 
must  offer  the  bond  in  evidence.'' 

§  45  h.  The  sureties  are  not  liable  for  property  which  was  not 
taken,  unless  the  return  precisely  specifies  what  was  taken. ^ 

§  46.  Questions    have  often    arisen  as  to  the    construction   of 
replevin  bonds ;   more  especially  with  reference  to  the  prosecu- 
tion of  the  former  suit  and  the  rendering  of  judgment  therein,  (a) 
§  46  a.  The  condition,  that  the  plaintiff  will  prosecute  his  suit  to 

1  Moore  v.  Campbell,  36  Vt.  801.  5  Shaw  v.  Tobias,  3  Comst.  188. 

2  Kafer  v.  Harlow,  5  Allen,  348.  "^  Larned  v.  Bruce,  G  Mass.  57. 

3  Nickerson  r.  Cliattcrton,  7  Cal.  568.  ^  Smith  v.  Fisher,  23  Ind.  500. 

*  Shaw  V.  Tobias,  3  Comst.  188.  8  Miller  v.  Moses,  56  Maine,  128. 

(«)  See,  as  to  the  effect  of  the  words  "prosecute  with  effect,"  Tunununs  v. 
Ogle,  37  Eng.  L.  &  Eq.  15. 


134  REPLEVIN.  [book   I. 

effect  and  without  delay,  is  a  substantive  and  independent  condi- 
tion, and  as  material  as  any  other  in  the  bond.^ 

§  46  h.  Breach  of  the  bond  may  consist  in  a  failure  to  return 
the  writ  through  negligence  of  the  officer  or  the  plaintiff.  But 
the  title  of  the  plaintiff  in  replevin  may  be  shown  in  mitigation 
of  damages.^ 

§  47.  To  a  replevin  bond  the  defendant  pleads  in  bar,  that  he 
duly  entered  his  action  at  the  Court  of  Common  Pleas,  and  prose- 
cuted it  with  effect ;  that,  upon  a  judgment  there,  an  appeal  was 
interposed  by  the  plaintiff  in  replevin  ;  that  the  creditor,  at  whose 
suit  the  chattels  had  been  attached,  had  received  full  satisfaction 
for  his  damages  and  costs ;  and  that  the  oflScer,  plaintiff  in  the 
action  on  the  bond,  had  been  indemnified  and  kept  harmless,  &c. 
Held,  on  demurrer,  the  plea  was  good.  The  court  remark:  "  The 
original  creditor  was  satisfied,  and  therefore  he  can  have  no 
claim  on  the  plaintiff  on  account  of  the  attachment.  The  plain- 
tiff was  to  be  saved  harmless;  and  the  plea  in  bar  avers  that  he 
has  been  so.  If  the  cattle  have  not  been  returned,  still  the  plain- 
tiff should  not  have  commenced  his  action  until  he  was  in  some 
way  damnified."  ^  So  A,  in  a  suit  against  B,  attached  an  undi- 
vided proportion  of  a  vessel  and  cargo,  and  recovered  final  judg- 
ment. C,  by  a  suit  in  the  form  of  an  action  of  trespass,  re- 
plevied the  property  as  his  own,  and  gave  a  statute  bond.  On 
the  trial  of  the  replevin,  on  the  plea  of  not  guilty,  it  appeared  that 
A,  at  the  time  of  the  attachment,  was  a  joint  owner  with  C  of  the 
property  attached,  which  was  known  to  C,  and  judgment  was  ac- 
cordingly rendered  against  C.  B  had  no  interest  in  the  property, 
but  C  owned  the  proportion  attached  as  his.  C  did  not  return 
the  property  replevied,  or  pay  the  debt  and  costs  which  A  had 
recovered  against  B.  In  an  action  by  A  against  C  on  the  re- 
plevin bond,  held,  C  was  not  liable,  the  judgment  against  C  in  the 
replevin  suit  not  showing  a  failure  to  prosecute  his  action  to 
effect,  and  to  make  his  plea  good,  within  the  meaning  of  the  stat^ 
ute,  or  the  bond.* 

§  48.  But  a  replevin  bond  is  held  good,  though  the  judgment 
is  for  a  recovery  of  money .°  So  it  is  no  good  bar  to  an  action  of 
debt  on  a  replevin  bond,  that  the  plaintiff  recovered  judgment 

1  Humphrey  v.  Taggart,  38  111.  228.  *  Ladd  v.  Prentice,  14  Conn.  109. 

2  Allen  V.  Woodford,  36  Conn.  143.  5  Robertson  v.  Davidson,  14  Min.  554. 
8  Arnold  v.  Allen,  8  Mass.  147,  150. 


CH.  viil]  replevin  bonds.  135 

• 

for  a  return,  damages,  and  costs,  and  that  the  defendant  delivered 
part  of  the  goods  and  tendered  the  remainder,  wliich  were  not. 
received ;  and  as  to  the  residue,  and  damages  and  costs,  acknowl- 
edging a  good  cause  of  action.  The^  relief  of  the  defendant,  in 
such  case,  is  in  equity,  not  by  a  defence  to  the  action, ^  Nor  that 
the  defendant  has  always  been  ready  to  return  the  goods  and  pay 
the  damages  and  costs,  but  the  plaintiff  never  demanded  them 
nor  delivered  his  writ  of  retorno  hahendo  to  an  officer  to  be  exe- 
cuted ;  for  want  of  an  allegation  that  the  defendant  prosecuted 
his  action  to  final  judgment.^ 

§  49.  So  to  an  action  on  a  replevin  bond,  the  condition  of 
which  was,  that  the  plaintiff  in  replevin  should  prosecute  his  writ 
to  final  judgment,  pay  such  damages  and  costs  as  shall  be  ad- 
judged against  him,  and  return  the  cattle ;  it  is  a  bad  plea,  that 
there  has  been  no  final  judgment  that  he  should  return  the  cattle, 
or  that  he  should  pay  damages  or  costs.^  So  nominal  damages 
may  be  recovered  for  non-prosecution  of  the  suit,  though  the 
defendant  had  no  title.^  So  where  a  replevin  bond  is  conditioned 
to  prosecute  the  suit  without  delay,  and  to  return  the  goods  if  a 
return  should  be  awarded ;  it  is  a  breach  of  the  condition,  if  the 
plaintiff  in  replevin  do  not  succeed,  though  there  be  no  award  of 
a  return.^  So  a  replevin  bond,  the  condition  of  which  is,  that 
the  plaintiff  shall  prosecute  his  suit  to  effect,  or  return  the  goods, 
is  broken,  by  the  withdrawal  of  the  writ  of  replevin  from  the 
hands  of  the  officer  by  the  plaintiff  before  the  return  day,  and 
the  discontinuance  of  the  suit.  Although  the  defendant  in  a 
replevin  suit  is  an  actor  therein  as  well  as  the  plaintiff,  yet  he  is 
not  such  until  after  avowry,  and  it  is  no  part  of  his  duty  to  see 
that  the  writ  is  returned.^  The  court  remark,  on  the  general 
subject,  that  there  are  many  cases  where  a  replevin  bond  be- 
comes, by  subsequent  events, /wnc^ws  officio  and  inoperative,  and 
where  the  liability  of  the  obligor  terminates,  although  the  con- 
dition has  not  been  fulfilled.  These  events  may  be  classified  as 
follows :  first,  such  as  terminate  the  suit  of  tiie  attaching  cred- 
itor adversely  to  him,  and  thus  put  an  end  to  his  lien  ;  second,  a 
termination  of  such  suit  and  lien  by  the  death  of  the  defendant 
therein,  which  dissolves  the  attachment ;  third,  events  like  the 

1  Sevey  v.  Blacklin,  2  Mass.  541.  ••  Smith  v.  Whitinjj,  100  Mass.  122. 

2  lb.  5  Brown  v.  Parker,  5  Blackf.  291. 

3  Lindsay  v.  Blood,  2  Mass.  618.  6  Persse  v.  AVaterhouse,  30  Conn.  139. 


136  REPLEVIN.  [book   I. 

death  of  a  party  in  a  replevin  suit,  which  determine  that  suit, 
and  render  the  performance  of  the  condition  impossible  by  the  act 
of  God  ;  fourth,  where  the  defendant  in  replevin,  by  his  laches  or 
misconduct,  loses  or  waives  his  rights  under  the  attachment,  or 
renounces  his  right  to  a  return  by  failing  to  make  avowry  and 
pleading  the  general  issue,  or  otherwise  loses  his  rights  in  the  par- 
ticular case  by  his  own  neglect.  But  where  the  defendant  in 
replevin  is  prevented  from  avowing  his  right  and  obtaining  a  judg- 
ment thereupon  by  the  act  or  fault  of  the  plaintiff,  as  where  the 
latter  takes  out  a  defective  writ,  and  the  suit  is  abated,  or  he 
becomes  nonsuit,  or  discontinues  or  withdraws  the  action ;  the 
defendant  may  have  a  judgment  of  return,  if  the  position  of  the 
case  in  court  will  permit  it,  or  may  have  his  remedy  on  the  re- 
plevin bond ;  for,  in  all  such  cases,  there  is  a  failure  to  prosecute. 
So  the  alternative  condition  of  the  bond  was,  to  return  the  goods 
to  the  attaching  officer,  or  to  the  officer  having  the  execution  in 
the  original  suit.  Held,  a  demand  upon  the  debtor,  by  the  officer, 
on  the  execution  in  that  suit,  was  not  necessary,  before  the  attach- 
ing creditor  could  become  entitled  to  a  return  ;  also,  that  no 
demand  upon  the  bond,  either  for  the  penalty  or  for  the  amount 
of  the  judgment  in  the  attachment  suit,  was  necessary,  before 
bringing  suit  on  the  bond.^ 

§  49  a.  In  Tennessee,  under  the  Act  of  1831,  c.  25,  if  several 
executions  are  levied  on  the  same  property,  the  obligors  in  a  bond 
executed  to  the  plaintiffs  in  one  of  them,  conditioned  to  deliver 
the  whole  property,  will  be  bound  to  deliver  only  so  much  of  it 
as  the  obligees  would  necessarily  have  been  entitled  to,  had  the 
property  been  distributed  pro  rata  among  all  the  creditors.^ 

§  50.  In  Delaware,  an  action  on  a  replevin  bond  does  not  abate 
by  death? 

§  51.  Where  the  original  debtor  died  after  property  was  at- 
tached and  replevied,  but  before  judgment  was  rendered  in  the 
suit ;  held,  in  an  action  on  the  bond,  the  attachment  was  dissolved, 
and  the  creditor  could  not  recover.^  So,  though  the  replevin 
suit  had  been  withdrawn,  and  judgment  thereupon  in  fact  ren- 
dered for  the  return  of  the  property.^ 

§  52.  A  condition  in  a  replevin  bond,  that  the  obligor  should 

1  Persse  v.  Watrous,  30  Conn.  130.  *  Green  v.  Baker,  14  Conn.  432. 

2  Kercheval  v.  Harley,  1  Meigs,  412.  5  lb. 

3  Waples  V.  Mcllvaine,  5  Har.  381. 


CH.    VIII.]  REPLEVIN    BONDS.  137 

prosecute  his  action  of  replevin  to  final  judgment,  is  saved  by  liis 
prosecuting  it  until  the  writ  is  abated  by  the  death  of  the  defend- 
ant.^ The  court  favor  the  opinion,  that  this  was  a  prosecution  to 
final  judgment,  and  a  fulfilment,  in  terms,  of  the  condition.  But, 
without  deciding  this  point,  they  hold  that  the  performance  was 
excused  by  the  defendant's  death.  Mr.  Justice  Wilde  remarks  : 
"  It  has  been  argued,  that  the  replevin  bond  was  substituted  for 
the  property,  and  that  therefore  there  was  a  vested  right  in  the 
obligee.  But  how  was  there  a  vested  right?  ...  In  replevin 
both  parties  are  actors,  and  the  possession  of  the  goods  by  the 
defendant  in  replevin  furnislies  no  legal  presumj)tion  of  property 
in  him.  .  .  .  Before  we  can  hold  the  defendants  liable,  .  .  .  we 
must  be  satisfied  that  the  present  plaintifi"  had,  at  the  time  of  the 
commencement  of  the  replevin  suit,  the  right  of  possession  ;  and 
this  right  cannot  be  determined  in  the  present  action.  The  lia- 
bilities of  the  sureties  on  a  replevin  bond  are  similar,  or  nearly 
so,  to  the  liabilities  of  bail.  The  security  in  the  one  case  is  no 
more  a  substitute  for  the  goods,  than  that  in  the  other  is  a  substi- 
tute for  the  person.  A  replevin  bond  is  an  executory  contract. 
.  .  .  There  is  no  vested  right  in  the  obligee,  not  even  the  right 
of  an  action,  until  there  is  some  breach  of  the  condition." 

§  53.  It  is  a  good  bar  to  an  action  on  a  replevin  bond,  that  the 
plaintiff"  in  replevin  entered  his  action,  that  the  Court  of  Com- 
mon Pleas  gave  judgment  against  him,  from  which  he  appealed, 
and  before  the  sitting  of  the  court  appealed  to  he  died.-  Mr. 
Chief  Justice  Parker  says :  "  Although  by  law  the  cause  of  action 
survived,  it  was  not  a  duty  of  the  administrator  ...  to  enter 
and  prosecute  the  action  at  the  Supreme  Judicial  Court,  until 
summoned  thereto  by  the  defendant.  .  .  .  The  action  could  only 
be  restored  by  the  act  of  the  executor  or  administrator,  if  he 
voluntarily  came  in,  or  of  the  defendant,  if,  upon  suggestion  of 
the  death,  he  had  moved  for  a  citation.  If  the  facts  would  have 
admitted  of  it,  the  present  plaintiff  .  .  .  should  have  replied  a 
judgment  recovered,  after  notice  to  the  administrator  ;  and  if  no 
administration  had  been  granted,  ...  he  should  have  applied.  .  .  . 
for  letters  ...  to  some  one  who  could  have  answered  to  the 
suit." 

§  54.  The  bond  does  not  extend  to  a  judgment  on  a  review.^ 

1  Badlam  v.  Tucker  1  Pick.  284.  3  Bell  v.  Bartlett,  7  N.  11.  178. 

2  Jenney  v.  Jenncy,  24  Mass.  231,  232. 


138  REPLEVIN.  [book  I.  CH.  VIII.] 

§  55.  Granting  a  writ  of  review  and  a  supersedeas  of  the 
execution  after  judgment  for  the  defendant  in  a  replevin  suit,  and 
taking  a  new  bond,  which  is  not  intended  as  a  substitute  for  the 
original  bond,  do  not  discharge  the  original  bond  ;  and  the  dec- 
laration in  an  action  upon  the  original  bond  should  set  out,  as  the 
breach  thereof,  the  failure  to  return  the  replevied  property  on 
the  judgment  in  the  replevin  suit.^ 

1  Brown  v.  Brlgham,  5  Allen,  582. 


BOOK   II.] 


DISSEISIN,   EJECTMENT,   REAL   ACTION. 


139 


BOOK    II. 


DISSEISIN,    EJECTMENT,    REAL    ACTION. 


1.  Recovery  of  real  property   by  action; 

I)ractice   in   the   United  States  and  in  Eng- 
and;  real  action;  ejectment. 

2.  Entry. 

8.  Title;  general  requisites;  as  against 
trespassers,  &c. 

10.  Ejectment  requires  ownership;  grounds 
of  title. 

i;i.  Conflicting  titles;  claimants  under  the 
same  person. 

15.  Defence;  title  in  a  third  person. 

16.  Equitable  title,  whether  sufficient  for 
plaintifl"  or  defendant. 

22.  K()uitiible  title  arising  from  a  purchase 
of  the  land. 

3-3.  Documentary  title;  title  by  public 
grant,  &c. 

35.  Title  by  deed. 

4G.  Vendor  and  purchaser. 

49.  Title  by  execution. 

54.  Ejectment  and  adverse  title  in  connec- 
tion with  possession. 

56.  Adverse  possession ;  disseisin ;  ouster. 

64.  Constructive  or  implied  possession. 


71.  Possession  is  but  primd  facie  evidence 
of  title. 

74.  Possession  of  the  defendant. 

75.  Successive  and  continuous  possession. 
7G.  Notice,  in  connection  with  adverse  pos- 
session. 

78.  Estoppel  against  denial  of  title. 

79.  Abandonment  of  title. 

84.  Parties  in  ejectment  — the  Common- 
wealth. 

85.  Partj'  beneficially  interested. 

88.  Death  of  p;trty  in  interest.  Heirs,  de- 
visees, executors,  &c. 

100.  Miscellaneous  cases. 

102.  Joint  title. 

124.  Disseisin  and  ejectment  as  between 
parties  jointly  interested. 

126.  Pleading  —  declaration. 

132.  Pleadings  of  the  defendant. 

143.  Evidence. 

151.  Damages;  mesne  profits;  improve- 
ments. 

156.  Verdict  and  judgment. 


§  1.  In  the  United  States,  the  possession  of  real  property, 
wrongfully  withheld  from  the  owner,  is  recovered,  specifically,  by 
an  action  indiscriminately  termed  ejectment,  ivrit  of  entry,  and  real 
action.  Under  one  or  the  other  of  these  names,  the  remedy  is 
almost  universally  provided  and  regulated  by  express  statutes,  (a) 
which  have  for  the  most  part  superseded  the  common-law  actions 


(a)  In  reference  to  the  statutory  provi- 
sions of  this  nature,  it  is  lield,  in  New 
York,  that  all  the  general  provisions  in 
the  Revised  iStatutes  relating  to  real  es- 
tate, where  no  specific  inconsistent  pro- 
vision is  made  in  the  Code  on  the  same 
subject,  remain  in  full  force,  and  are  to  he 
applied  and  adapteil  to  the  actions  under 
the  Code.  St.  John  v.  Pierce,  22  Barb. 
362.  Sec.  31  of  the  Ejectment  Act  (2 
Kev.  Sts.  808)  is  one  of  tlio.se  general 
provisions  which  the  court  is  bound  to 
apply  to  actions  under  the  Code  (§  455), 
and,  by  reasonable  interpretation,  it  ap- 
plies to  all  cases  where  the  title,   upon 


which  the  plaintiff  seeks  to  recover  pos- 
session, has  from  any  cause  ceased  to  exist 
before  the  trial ;  and  the  defendant  may 
avail  himself  of  its  provisions,  without 
filing  a  supplemental  answer.  Lang  v. 
Wili)raliam,  2  Ducr,  171.  The  mode  of 
procedure  to  determine  claims  to  real  es- 
tate, given  by  §  44'J  of  the  Code,  is  nimii- 
lat/ve.  Barnard  v.  Simms,  42  Barb.  304. 
Tlie  defendant,  in  proceedings  to  deter- 
mine such  claim,  brought  and  presented 
by  notice  under  tlii-  statutes,  must  prove 
a  claim  in  fee  or  for  life  or  for  a  term  of 
at  least  ten  years.  lb. 
In  Kliode  Island,  ejectment  lies  for  any 


140 


DISSEISIN,    EJECTMENT,    REAL    ACTION. 


[book  II. 


of  the  same  nature,  (a)     The  plan  of  the  present  work  does   not 
admit  that  technical  treatment  of  the  subject  which  would  be 


wrongful  entry  upon,  or  witliholding  of, 
real  estate.  Rev.  Sts.  c.  822,  359 ;  Mc- 
Cann  v.  Rathbone,  8  R.  I.  2'.i7. 

In  Illinois,  if  a  party  in  ejectment  al- 
lo\v.s  the  year  to  elapse  witiiout  having 
the  juilgmont  vacated  in  the  Circuit 
Court,  he  must  take  tiie  risk  of  getting  it 
reversed  in  the  Sujirenie  Court,  and,  if 
he  fails  there,  the  judgment  becomes  con- 
clusive, and  he  lias  no  remedy.  The  stat- 
ute gives  the  Circuit  Court  power  to  va- 
cate the  judgment  within  the  year,  wiiere 
an  appeal  is  taken,  or  a  writ  of  error  is 
prosecuted.     Gibson  v.  Manly,  1-5  111.  140. 

{a)  Tlie  following  view  is  given,  by 
Blaekstone,  of  tlie  obsolete  remedies  re- 
ferred to  in  the  te.xt.  That  portion  relat- 
ing to  the  fictitious  action  of  ejectment, 
with  its  so-called  incjenious  contrivances, 
for  reaching  what  might  be  thought  so 
simple  and  accessible  a  point  as  justice 
between  man  and  man,  must  pass  for  one 
of  the  quaintest  curiosities  of  historical 
jurisprudence  :  "Heal  actions  (or,  as  they 
are  called  in  the  Mirror,  /eof/«/ actions), 
which  concern  real  property  only,  are  such 
whereby  the  plaintiff,  here  called  the  de- 
mandant, claims  title  to  have  any  lands  or 
tenements,  rents,  commons,  or  other  here- 
ditaments, in  fee-simple,  fee-tail,  or  for 
term  of  life.  By  these  actions  formerly 
all  disputes  concerning  real  estates  were 
decided  ;  but  they  are  now  pretty  gener- 
ally laid  aside  in  practice,  upon  account 
of  the  great  nicety  required  in  their 
management,  and  the  inconvenient  length 
of  their  process  ;  a  much  more  expedi- 
tious method  of  trying  titles  being  since 
introduced  by  other  actions  personal  and 
mixed." 

Note  to  the  above.  —  '•'  Real  actions,  with 
the  exception  of  three,  —  dower,  right  of 
dower,  and  quare  impedit,  — were  entirely 
abolished  by  Stat.  3  &  4  W.  IV.,  c.  27,  §  36. 
All  mixed  actions,  with  one  exception,  — 
the  action  of  ejectment,  —  were  abolished 
by  the  same  statute.  The  action  of  eject- 
ment thus  preserved  has  now,  by  tlie 
Common-Law  Procedure  Act,  1852,  been 
also  swept  away,  and  a  new  procedure  or 
action  of  ejectment  substituted  in  its 
place.  Stewart."  3  Sharsw.  Bl.  Comm. 
118. 

A  writ  of  entry  "  is  that  which  dis- 
proves tlie  title  of  the  tenant  or  possessor, 
by  showing  the  unlawful  means  by  which 
he  entered  or  continues  possession.  The 
writ  is  directed  to  the  sheriff,  requiring 
him  to  command  the  tenant  of  the  land 
that  he  render  (in  Latin,  pracipe  quod  red- 
dat)  to  the  demandant  the  land  in  ques- 


tion, which  he  claims  to  be  his  right  and 
iniieritance  ;  and  into  which,  as  he  saith, 
the  said  tenant  had  not  entry  but  by  (or 
after)  a  disseisin,  intrusion,  or  the  like, 
made  to  the  said  demandant,  within  the 
time  limited  by  law  tor  sucli  actions  ;  or 
tiiat  iijion  refusal  he  do  appear  in  court, 
on  sucii  a  day,  to  show  wherefore  he  hath 
not  done  it.  This  is  the  original  process, 
the  pnecipe  upon  which  all  the  rest  of  the 
suit  is  grounded  :  wherein  it  appe;.rs  that 
the  tenant  is  required,  eitlier  to  deliver 
seisin  of  tlie  lands,  or  to  show  cause  why 
lie  will  not.  This  cause  may  be  eitlier  a 
denial  of  the  fact  of  having  entered  by 
or  under  such  means  as  are  suggested,  or 
a  justification  of  his  entry  by  reason  of 
title  in  himself  or  in  those  under  whom 
he  makes  claim  :  whereupon  the  posses- 
sion of  the  land  is  awarded  to  him  who 
produces  the  clearest  right  to  possess  it." 
3  Shai'sw.  Bl.  Comm.  179.  "  The  remedy 
by  writ  of  entry  was  abolished  by  3  &  4 
W.  IV.,  c.  27,  §  36.  Stewart."  lb.  183,  n. 
"  The  remed}'  by  ejectment  is  in  its 
original  an  action  brought  by  one  who 
hath  a  lease  for  years,  to  repair  the  injury 
done  him  by  dispossession.  In  order, 
therefore,  to  convert  it  into  a  method  of 
trying  titles  to  the  freehold,  it  is  first  nec- 
essary that  the  claimant  do  take  posses- 
sion of  the  lands,  to  empower  him  to  con- 
stitute a  lessee  for  years,  that  may  he 
capable  of  receiving  this  injury  of  dis- 
possession. For  it  would  be  an  ofTence, 
called  in  our  law  maintenance  ...  to  con- 
vey a  title  to  another,  when  the  grantor 
is  not  in  possession ;  and,  indeed,  it  was 
doubted  at  first,  whether  this  occasional 
possession,  taken  merely  for  the  purpose 
of  conveying  the  title,  excused  the  les- 
sor from  the  legal  guilt  of  maintenance. 
When,  therefore,  a  person,  who  liath  right 
of  entry  into  lands,  determines  to  acquire 
that  possession,  which  is  wrongfully  with- 
held by  the  present  tenant,  he  makes  (as 
by  law  he  may)  a  formal  entry;  .  .  .  and 
being  so  in  the  possession  of  the  soil,  he 
there,  upon  the  land,  seals  and  delivers  a 
lease  for  years  to  some  third  person  or 
lessee  ;  and  having  thus  given  him  entry, 
leaves  him  in  possession.  This  lessee  is 
to  stay  upon  the  land  till  the  prior  tenant 
.  .  .  enters  thereon  afresh  and  ousts  him, 
or  till  some  other  person  (either  by  acci- 
dent or  by  agreement  beforehand)  comes 
upon  the  land,  and  turns  him  out  or  ejects 
him.  For  this  injury  the  lessee  is  enti- 
tled to  his  action  of  ejectment  against  tlie 
tenant,  or  this  casual  ejector  ...  to  re- 
cover back  his  term  and  damages.     But 


BOOK   TT.] 


DISSEISIN,   EJECTMENT,    REAL    ACTION. 


141 


expected  in  a  treatise  specially  devoted  to  its  consideration.     All 
that  is  here  attempted,  is  such  a  practical  and  summary  view  as 


where  tliis  action  is  brouplit  afj;iiinst  sucli 
a  casual  ejector,  .  .  .  the  court  will  not 
sutler  the  tenant  to  lose  his  jiosses.sion 
without  any  ojjportvniity  to  delend  it. 
Wherefore,  .  .  .  no  jjlaintitl'  shall  pro- 
ceed in  ejectment  to  recover  land  ajjaingt 
a  casual  ejector,  without  notice  f^iven  to 
the  tenant  in  possession  (if  any  there  be), 
and  making  liini  a  defendant  if  he  pleases. 
And  .  .  .  the  i)laiiUit}'  must  .  .  .  make 
out  four  points  ;  namely,  title,  lease,  eritri/, 
and  ouster.  First,  ...  a  good  title  in  his 
lessor,  which  brings  tlie  matter  of  right 
entirely  before  the  court;  tiien,  that  the 
lessor  being  seised  or  ])ossessed  by  virtue 
of  such  title,  did  make  him  the  lease; 
thirdly,  that  lie  .  .  .  did  e)iier  ...  in 
consequence  of  such  lease ;  and  then, 
lastly,  that  the  defendant  oustid  or  ejected 
him.  Whereujjon  he  shall  have  judgment 
to  recover  his  term  and  damages ;  and 
shall,  in  consequence,  have  a  tcrit  of  pus- 
session.  .  .  .  But  a  new  and  more  easy 
method,  .  .  .  where  there  is  any  actual 
tenant,  .  .  .  was  invented,  ...  by  the 
Lord  Chief  Justice  KoUe.  This  depends 
upon  a  string  of  legal  fictions  ;  no  actual 
lease  is  made,  no  actual  entry  by  the  i)lain- 
tifij  no  actual  ouster  by  the  defendant; 
but  all  are  merely  ideal,  for  the  sole  pur- 
pose of  trying  the  title.  ...  A  lease, 
...  is  stated  to  have  been  made,  by  him 
who  claims  title,  ...  to  the  plaintiff, 
.  .  .  which  plaintiff"  ought  to  be  some 
real  person.  ...  It  is  also  stated,  that 
Smith,  the  lessee,  entered,  and  that  the 
defendant,  William  Stiles,  who  is  called 
the  at.siitil  ejector,  ousted  him;  for  which 
ouster  he  brings  this  action.  .  .  .  Stiles 
.  .  .  sends  a  written  notice  to  the  tenant 
...  as  George  Sanders,  informing  him  of 
the  action  ;  in  that  assuring  him  that  he. 
Stiles,  has  no  title,  and  shall  make  no  de- 
fence. If  the  tenant  does  not,  within  a 
limited  time,  ap])ly  to  the  court  to  be  ad- 
mitted as  a  defendant,  he  is  sujjjiosed  to 
have  no  right;  and,  upon  judgment  being 
had  against  Stiles,  Sanders  will  be  turned 
out  of  possession  by  the  sheriff.  Hut  if 
the  tenant  apjjlies  to  be  made  a  defend- 
ant, it  is  allowed  him  upon  this  condition, 
that  he  enter  into  a  rule  of  the  court  to 
confess  the  lease,  entry,  and  oitsl<r.  The 
trial  will  now  stand  upon  the  merits  of  the 
title  onl}'."  3  Sliarsw.  Bl.  Comm.  I'J'J. 
See  Stearns,  K.  Act.  352  n. 

"  New  jiroceedings  for  the  recovery  of 
land  have  been  createil  by  the  Common- 
Law  I'rocedure  Act,  lSo2,  and  the  former 
action  of  ejectment  has  given  place  alto- 
■getlier  to  tiiis  new  procedure.     Many  of 


the  United  States  had  long  preceded  Eng- 
land in  tills  valuable  reform  ;  but  several 
still  continue  toemjiloy  the  ancient  form  ; 
and  in  the  Circuit  (Courts  of  the  United 
States,  in  those  States  in  which  it  was  in 
use  when  those  courts  were  established, 
it  is  still  empkn'ed."  lb.  205.  Notes  of 
Stewart  &  Sliarswood. 

It  is  held  in  New  Hampshire,  that  a 
writ  of  entry,  sur  disseisin,  is  a  proper  and 
recognized  form  of  action.  Potter  v.  Ba- 
ker, lU  N.  II.  IGG. 

In  reference  to  the  technical  action  of 
ejectment,  it  is  lield  to  be  merely  a  pos- 
sessory action,  and  confined  to  cases  where 
the  claimant  has  a  possessor}'  title  ;  that 
is  to  say,  a  right  of  entry  upon  the  lands. 
To  support  it,  four  things  are  necessary, 
namelv,  title,  lease,  entry,  and  ouster. 
Payne  v.  Treadwell,  5  Cal.  310.  See  Con- 
nor V.  Peugh,  18  How.  3'J4 ;  Grande  v. 
Foy,  1  Hemp.  105  ;  Seaburv  v-  Stewart, 
22  Ala.  207;  Rawls  r.  Doe,  23  ib.  240; 
Hancock  r.  Aiken,  4  Zabr.  544. 

The  fictions  in  an  action  of  ejectment, 
being  necessary  to  this  form  of  action, 
will  not  be  allowed  to  prejudice  the  par- 
ties. Warner  v.  Hardy,  6  Md.  525.  A 
judgment  against  a  casual  ejector  will  be 
stricken  out,  even  after  several  terms, 
upon  application  of  the  real  defendant,  if 
he  makes  application  immeiliately  u])on 
receiving  actual  notice.  Dennis  r.  Kelso, 
28  Md.  333. 

A  applied  to  the  orphans'  court  for 
partition,  and  B  resisted,  on  the  ground 
that  the  land  belonged  to  him  by  a  parol 
gift.  The  court  ordered  an  amicable 
ejectment  to  try  the  right,  which  resulted 
in  a  verdict  in  favor  of  B.  Held,  this  was 
only  a  feigned  issue,  to  inform  the  con- 
science of  the  court,  and  of  no  conclusive 
effect.     Wible  v.  Wible,  1  Grant,  40(3. 

A  recovery  in  ejectment  is  only  for  the 
luiexpired  portion  of  the  term  laid  in  the 
demise.  Kennedy  v.  Reynolds,  27  Ala.  3iJ4. 

The  power  to  lea.sc  passes  by  implica- 
tion the  power  to  defend  or  recover  the 
possession  as  by  ejectment.  Windham  v. 
Chisholm,  35  Miss.  531. 

In  general,  lo  prevent  surprise,  posses- 
sion of  the  defendant  must  be  proved,  not- 
withstanding confession  of  "  lease,  entry, 
and  ouster,"  in  the  common  rule.  But  it 
is  otherwise  where  one  is  served  with  a 
copy  of  the  declaration,  after  leaving  the 
premises,  enters  into  the  common  rule, 
and  contests  the  title-deeds,  without  (pies- 
tioning  the  identity  of  the  land.  Atwell 
V.  McLurc,  4  Jones,  371. 

Ejectment  does  not  lie  upon  a  demise 


142 


DISSEISIN,   EJECTMENT,    REAL   ACTION. 


[book  II. 


may  be  derived  from  the  decided  cases  in  the  several  States,  more 
especially  those  of  the  most  recent  date.     Some  of  tliem,  doubt- 


from  one  deceased  at  the  date  of  such  de- 
mise. Goodtitle  v.  Roe,  20  Geo.  135.  Nor 
from  one  having  no  title  at  the  commence- 
ment of  suit ;  nor  from  an  administrator 
appointed  by  a  court  witliout  jurisdiction. 
lb.  A  phiintitt'  who  claims  under  two 
leases  cannot  recover,  when  one  lessor  has 
conveyed  his  legal  title  and  the  other  is 
barred  by  a  former  recovery.  Doe  d. 
Dearmond  v.  Roe,  30  Ga.  632.  In  Georgia, 
when  the  lease  has  expired  before  trial, 
no  recovery  can  be  had  without  amend- 
ment. Roe  V.  Doe  d.  Adams,  30  Ga.  608. 
A  new  lessor  of  the  plaintiff  may  be  in- 
troduced at  any  time  before  trial.  But 
the  titles  of  the  several  lessors  are  differ- 
ent causes  of  action  ;  and  for  purposes  of 
defence  the  action  as  to  each  is  commenced 
when  he  is  introduced  into  the  declara- 
tion. Pollard  V.  Tait,  38  Ga.  439.  If  a 
joint  demise  is  laid  in  the  declaration,  the 
evidence  must  show  a  joint  interest  in  the 
lessors.  Bohanan  v.  Bonn,  32  Ga.  390.  A 
plaintiff  in  ejectment  must,  in  order  to 
use  the  name  of  another,  sliow  some  con- 
nection between  his  title  and  that  of  the 
latter.  Shanks  v.  White,  36  Ga.  432. 
Where  a  plaintiff  seeks  to  recover  in  a 
lessor's  name  which  the  prosecuting  at- 
torney is  not  authorized  to  use,  the  action 
is  not  to  be  dismissed,  unless  it  also  ap- 
pear that  the  party  himself  has  no  such 
authority.  lb.  Where  a  party  has  a  clear 
bond  fide  claim,  he  may  protect  his  rights 
and  cure  a  defect  in  the  chain  of  his  title 
by  laying  a  demise  in  the  name  of  an- 
other, even  without  his  consent,  upon 
giving  suflBcient  guaranty  against  loss  or 
damage.  lb.  To  authorize  the  plaintiff 
to  use  the  name  of  a  third  person  as  les- 
sor, he  must  show  that  he  lias  a  bona  fide 
subsisting  claim,  and  that  there  is  a  con- 
nection between  their  titles,  or  that  he  has 
authority  thus  to  sue.  Keeter  v.  Smith, 
32  Ga.  445.  See  Gibbins  v.  Buckland,  1 
Hurl.  &  Colt.  736. 

The  lessor  of  the  plaintiff  must  have 
the  legal  title,  at  the  time  of  the  demise 
laid,  and  at  the  time  of  the  action  brouglit. 
The  doctrine  of  relation  has  never  been 
extended  further,  than  that  a  legal  title, 
when  acquired,  shall  lulate  back  to  the 
period  when  the  right  accrued  to  the  prop- 
erty, so  as  to  deteat  subsequent  claimants 
or  incumbrancers,  holding  adversely  to 
the  right.  Laurissini  v.  Doe,  25  Miss. 
177. 

By  the  common-law  consent  rule,  the 
defendant  is  required,  on  being  let  in  to 
defend  in  lieu  of  the  fictitious  tenant,  to 


plead  not  guilty,  and  agree  at  the  trial 
of  the  issue  to  confess  lease,  entry,  and 
ouster,  and  insist  upon  title  only.  The 
plaintiff  must  show  the  defendant  in  pos- 
session at  the  time  the  suit  is  brought. 
Southgate  v.  Walker,  2  W.  Va.  427. 

In  addition  to  the  remedies  for  recovery 
of  real  property  above  described,  is  the 
lorit  of  rigid ;  which,  liowever,  if  not  ex- 
pressly abolished,  is  of  such  rare  occur- 
rence as  to  require  only  a  very  brief 
notice.  "  In  case  the  right  of  possession 
be  barred  by  a  recovery  upon  the  merits 
■in  a  possessory  action,  or,  lastly,  by  the 
Statute  of  Limitations,  a  claimant  in  fee- 
simple  may  have  a  mere  writ  of  rigid.  .  .  . 
This  writ  lies  concurrently  with  all  other 
real  actions,  in  which  an  estate  of  fee- 
simple  may  be  recovered  ;  and  it  also  lies 
after  them,  being,  as  it  were,  an  appeal  to 
the  mere  right,  when  judgment  hath  been 
had  as  to  the  possession,  in  an  inferior 
possessory  action.  ...  In  case  the  right 
of  possession  be  lost  by  length  of  time, 
or  by  judgment  against  the  true  owner  in 
one  of  these  inferior  suits,  .  .  .  this  is 
then  the  only  remedy,  .  .  .  and  it  is  of 
so  forcible  a  nature,  that  it  overcomes  all 
obstacles,  and  clears  all  objections  that 
may  have  arisen  to  cloud  and  obscure  the 
title.  And,  after  issue  once  joined  in  a 
writ  of  right,  the  judgment  is  absolutely 
final ;  so  that  a  recovery  had  in  this  ac- 
tion may  be  pleaded  in  bar  of  any  other 
claim  or  demand."  3  Sharsw.  Bl.  C'omm. 
192. 

A  writ  of  right  at  common  law  would 
lie  only  to  recover  a  fee-simple  estate,  and 
in  favor  of  him  who  had  the  fee-simple 
title.  A  count  which  does  not  allege  a 
seisin  in  fee-simple,  either  in  the  demand- 
ant or  in  the  ancestor  through  whom  he 
claims,  is  defective  as  a  count  in  a  writ  of 
right,  although  it  alleges  the  disseisin  of 
the  demandant's  ancestor.  But  it  is  sufli- 
cient,  and  must  be  considered,  as  a  count 
in  a  writ  of  entry  sur  disseisin,  especially 
after  verdict,  the  gist  of  that  action  being 
wrongful  disseisin  without  regard  to  the 
mere  right  of  property.  Lyon  v.  Mottuse, 
19  Ala.  463. 

The  writ  of  right,  which  existed  as  a 
remedial  process  in  the  State  of  Massa- 
chusetts at  the  time  of  the  passage  of  the 
Judiciary  Act,  still  exists  as  a  process  in 
the  courts  of  the  United  States  in  Massa- 
chusetts, though  it  has  been  abolislied  in 
the  State  courts  by  an  act  of  the  Legisla- 
ture.    The    time    in   which    it    may  be 


BOOK   II.]  ENTRY,   POSSESSION,   TITLE.  143 

less,  turn  upon  express  statutory  provisions ;  but  tlio  attempt  is 
made,  to  cite,  for  tlie  most  part,  those  only  which  arc  of"  universal 
and  not  mere  local  applicability.  It  will  be  seen,  that  the  lurong 
of  ouster  or  disseisin,  and  the  remedy  of  ejectment,  are,  for  the 
reasons  heretofore  stated,  considered  together,  as  inseparable  parts 
of  one  and  the  same  general  topic. 

§  2.  Entry  upon  land  is  of  course  an  important  point  in  con- 
nection with  suits  relating  to  the  title. 

§  3.  P]jectment  may  be  maintained  without  actual  entry. ^ 

§  4.  An  entry,  for  the  purpose  and  with  an  offer  to  sell,  made 
by  one  having  a  deed,  under  which  he  claims,  gives  seisin  and 
title  as  against  all  persons  not  showing  an  elder  and  a  better  one, 
although  no  lines  were  marked,  nor  other  traces  or  monuments  of 
the  entry  left.- 

§  5.  A  entered,  in  1836,  under  a  deed,  and  in  1847  conveyed 
with  warranty  to  B  and  C,  who  in  1851  conveyed  to  the  defend- 
ants, who  entered.  The  court  will  not  presume  an  abandonment 
of  the  seisin  so  acquired  by  A,  in  favor  of  a  party  who  had  made 
improvements  upon  the  lot,  claiming  it  under  a  deed  and  residing 
upon  it  for  twelve  years,  and  whose  possession  was  later  than 
that  of  A.3 

§  6.  A  party  entering  upon  land  under  color  of  title  is  presumed 
to  enter  and  occupy  according  to  his  title.* 

§  7.  The  motive  or  mode  of  entry  is  held  not^to  affect  its  legal 
validity.  Thus,  ejectment  cannot  be' maintained  against  one  with 
a  right  of  entry,  who  enters  by  force  or  fraud.^     Nor  can  the 

1  Cornelius  v.  Ivins,  2  Dutch.  376.  *  Tappan  v.  Tappan,  11  Fost.  41. 

-  Jones  V.  Merrimack,  &,c.  11  Fost.  381.  5  Depuy  v.  Williams,  26  Cal.  313. 

8   lb. 

brouglit,  liowever,  is  still  fixed  by  the  of  forcible  entry  and  detainer,  brou{,fiit  by 
statutes  of  Massacliusetts,  liniitinir  tlie  the  tenants  against  tlie  demandants  for 
time  within  which  sucli  a  remedy  may  he  'the  same  land,  is  admissible  as  an  admis- 
proseciiteil  in  its  own  courts.  Homer  v.  sion  by  the  tenant  that  tlie  demandant 
Brown,  10  How.  354.  was  in  possession,  wlien,  or  witliin  three 
Wiiere  a  demandant  in  a  writ  of  right  years  before,  the  proceedings  were  corn- 
claims  only  part  of  a  tract  claimed  by  tlie  menced.  Breathed  v.  Smith,  1  1'.  &  II. 
tenant;  the  tenant,  to  protect  himself  un-  (Va.)  301. 

der  the  ^'irginia  statute,  must  prove  con-  Since  the  abolishment   of  tlie   writ  of 

tinned  adverse  possession  of  some  jiart  of  right  in  Massachusetts,  a  final  judgment 

the  land  in  controversy.     Koiner  v.  Kan-  in  a  writ  of  entry  in  tlie  courts  of  that 

kin,  11  Gratt.  420.   In  a  writ  of  riglit,  the  State  is  a  complete  bar  to  a  plea  of  lands 

failure  to  file  a  plea  is  an  error  not  cured  subsequently  commenced  and  prosecuted 

by  a  verdict  in  favor  of  tlie  tenant.    Kow-  by  a  writ  of  riglit  in   tlie  Circuit  Court 

ans  V.  Givens,  10  Gratt.  250.    In  a  writ  of  for  the  district  of  IMas.sachusetts.     Derby 

right,  a  verdict  and  judgment,  in  a  case  i'.  Jaques,  1  Clifl[.  425. 


144 


DISSEISIN,   EJECTMENT,    REAL    ACTION. 


[book  II. 


plaintiff  show  entry  of  the  defendant  by  collusion  with  one  not 
having  the  right  of  entry. ^  (a) 

§  8.  Ejectment  is  maintained,  by  a  right  of  possession  in  the 
plaintiff,  (Z;)  and  actual  possession  in  the  defendant.^  It  is  not 
necessary  that  a  plaintiff  should  show  a  good  title  against  all 
the  world,  but  only  against  the  defendant  j^  as  where  the  defend- 
ant is  a  trespasser,"*  or  an  intruder,  whether  the  plaintiff  holds  the 
legal  title  absolutely  or  only  in  trust.  So  an  attorney,  taking  a 
deed  in  his  own  name,  may  recover  against  any  one  but  his  client 
or  those  claiming  under  him.'^  (c) 

§  9.  In  reference  to  a  derivative  title,  it  is  held,  that  want  of 
actual  seisin  in  a  person  through  whom  the  plaintiff  claims,  is  not 
a  ground  of  nonsuit,  if  he  had  a  seisin  by  deed ;  but  it  may  be, 
if  there  was  a  descent  cast.^ 

§  10.  It  is  the  general  rule,  that  ejectment  will  lie,  and  can  only 
be  maintained  by  an  owner  ; "'  (<^)  by  one  in  whom  the  legal  title 


1  Depuy  V.  Williams,  26  Cal.  313. 
-  Owen  V.  Fowler,  24  Cal.  194;  Ovven 
V.  Morton,  ib.  379. 

3  Garrett  v.  Lyle,  27  Ala.  586. 

*  Turner  v.  Alridge,  ib.  229  ;  Bates  v. 


Campbell,  25  Wis.  613;  Coucy  v.  Cum- 
mings,  12  La.  An.  748. 

5  Lair  v.  Hunsieker,  28  Penn.  115. 

6  McGregor  v.  Comstock,  16  Barb.  427. 
"^  Lamar  v.  Raysor,  7  Rich.  509. 


((()  An  entry  to  make  partition,  with 
other  acts  of  claim,  is  evidence  of  posses- 
sion, and,  if  under  claim  of  right,  will  sus- 
tain ejectment.  Kirklaud  v.  Thompson, 
51  Penn.  216. 

An  entry,  for  the  purpose  of  ousting  a 
disseisor,  made  b}'  one  of  the  heirs  of  the 
disseisee,  or  by  more  than  one  but  less 
than  all,  or  by  the  authorized  agent  of 
one  or  more,  will  be  presumed  to  be  in 
maintenance  of  the  right  of  all.  Peabody 
V.  Hewett,  52  Maine,  33.  If  a  disseisee, 
or  his  agent,  goes  upon  the  land,  with  the 
intent  of  making  an  entry,  and  declares 
to  the  disseisor  such  purpose,  it  will  be  a 
legal  entry.  Such  intent  is  necessary. 
Ib. 

[h)  Statutes,  providing  for  an  action  by 
one  /"  possession  are  construed  to  mean 
actual  possession,  personal  or  by  a  tenant. 
Eaton  V.  Giles,  5  Kans.  24;  Comp.  L. 
224;  Murphy  v.  Hinds,  15  Min.  182; 
Gen.  Sts.  c.  75,  §  1. 

A  tenant,  taking  a  lease  to  operate  for 
oil,  and  the  qualified  possession  necessary 
for  that  purpose,  may  maintain  ejectment 
against  the  landlord  for  wrongful  dispos- 
session.    Karns  v.  Tanner,  66  Penn.  297. 

(c)  It  is  enough  that  the  plaintiff  show 
a  right  to  recover  against  the  defendant, 
though  another  person  may  be  entitled  to 


recover  against  himself.  Gaines  v.  New 
Orleans,  6'^Wall.  642. 

An  outstanding  title  in  a  stranger  is  no 
defence,  though  the  plaintiff  claims  only 
under  prior  actual  possession  not  appa- 
rently wrongful.  Perkins  v.  Blood,  36 
Vt.  273. 

The  plaintiff"  must  show  a  right  to  the 
possession  in  himself,  and  a  possession  in 
the  defendant,  at  the  time  the  action  is 
brought.  Owen  v.  Fowler,  24  Cal.  192 ; 
Owen  V.  Morton,  24  Cal.  373. 

Such  riglit,  obtained  pendente  lite,  is  not 
sufficient.^  Kile  v.  Tubbs,  32  Cal.  332. 

Though  the  demandant's  title  is  tainted 
with  cliamperty  or  maintenance,  if  he  has 
the  ownership  and  the  right  of  entry,  he 
may  maintain  his  action.  Hovey  v.  Hob- 
son,  51  Maine,  62. 

It  is  not  necessary  to  prove  actual  dam- 
age by  the  ouster.  Dilley  v.  Sherman,  2 
Nev.  67. 

[d]  It  is  foreign  from  the  purpose  of  the 
present  work  to  consider  the  acquisition 
of  title  by  lapse  of  time,  prescription,  or 
a  statute  of  limitations  The  whole  sub- 
ject is  variously  regulated  by  the  statutes 
of  the  several  States.  In  reference  to 
the  operation  of  a  statute,  it  is  held,  in 
"New  York,  that,  where  one  had  a  right 
of  entry  on  lands  in  the   possession   of 


BOOK   II.] 


TITLE. 


145 


is  vested,  or  his  legal  representative.^  And  the  plaintiff  is  bound 
to  show  title  in  himself  at  the  commencement  of  tlie  action.^  Or, 
according  to  the  general  rule,  he  must  show  a  possessory  rl(jht.'^ 
And  he  may  show  a  vested  legal  title,  no  matter  how  acquired, 
if  fairly,  or  through  whom  it  may  have  been  derived.^ 

§  11.  The  same  rule  is  sometimes  expressed  in  the  form,  that 
the  plaintiff  must  show  the  best  title,  —  a  title  to  possession.^  He 
must  recover  on  the  strength  of  his  own  title,  and  cannot  in  gen- 
eral rely  upon  the  weakness  of  the  defendant's.*^  (a)  Until  the 
plaintiff  shows  a  legal  and  possessory  title,  the  defendant  need 
not  show  title  in  himself  or  a  third  person."  Under  the  gen- 
eral issue,  the  defendant  may  rest  upon  his  possession,  until  the 
plaintitr  has  shown  some  right  to  disturb  it.*^  (6) 

§  12.  A  plaintiff  may  claim  both  upon  the  ground  of  title,  and 


1  Csize  V.  Robertson,  14  La.  An.  232; 
33  Miss.  4G  ;   12  Geo.  16G  ;  19  Ark.  201. 

-  Layman  v.  Whiting,  20  Barb.  559. 

8  Batterton  v.  Yoakum,  17  111.  288  ; 
Williams  v.  Hartshorn,  '60  Ala.  211 ;  Heft- 
ner  r.  Bctz,  32  Penn.  376  ;  12  Geo.  166  ; 
19  Ark.  201. 

*  Kew  York,  &c.  v.  Ilicks,  5  McLean, 
111. 

5  Scabury  v.  Field,  1  McAUis.  1. 

another,  when  the  Revised  Statutes  took 
effect,  sucli  adverse  possession  must  have 
continued  twenty-five  years  to  raise  the 
presumption  of  a  grant.  Poor  v.  Horton, 
15  Barb.  485. 

In  Kentucky,  twenty  years'  possession 
is  necessary  iu  case  of  a  void  deed. 
Breeding  v.  Taylor,  13  B.  Mon.  477. 

In  Illinois,  twenty  years'  possession  is 
required,  where  the  occupation  com- 
menced by  disseisin.  Turne^'  v.  Cham- 
berlain, 15  111.  271.  See  State  v.  Trus- 
tees, &c.  5  Ind.  77. 

In  Missouri,  an  adverse  possession  for 
twenty  years  c(jnfGrs  an  absolute  title 
against  every  one  not  excepted  by  statute. 
Blair  v.  Smith,  16  Mis.  273. 

In  Pennsylvania,  if  a  plaintiff  claims 
title  by  twenty-one  years'  adverse  i)os- 
session,  he  must  prove  every  element 
necessary  to  constitute  a  title  under  the 
Statute  of  Limitations;  otherwise,  it  is 
tlie  duty  of  the  court  to  instruct  tlie  jury, 
that  there  is  not  sufficient  evidence  to  en- 
title him  to  recover.  De  Haven  v.  Lan- 
dell,  31  Penn.  120. 

Where  it  is  declared  by  statute  that  no 
action  sliall  be  brought  for  land  uidess 
the  demandant  was  seised  within  tweiity- 


6  State  V.  Stringfellow,  2  Ivans.  2(53 ; 
Stuart  V.  Button,  39  IU.  91 ;  26  Ind.  436  ; 
30  Geo.  355  ;  53  Maine,  275  ;  Stanford  v. 
Mangin,  30  Ga.  355  ;  Stehman  v.  Crull, 
26  Ind.  4.36  ;  Chaplin  ".  Barker,  53  Maine, 
275 ;  Woodworth  v.  Fulton,  1  Cal.  295 ; 
Webster  v.  Hill,  38  Maine,  78  ;  Bruce  v. 
Mitchell,  39  ib.  390. 

■J  Hammond  r.  Inloes,  4  Md.  138. 

8  53  Maine,  275. 

five  years,  an  averment  of  seisin  witliin 
sixty  3'ears  is  bad.  Bockee  v.  Crosbv,  2 
Paine,  C.  C.  432. 

(a)  "  The  demandant  .  .  .  must  recover 
by  tlie  strength  of  his  own  title,  that  of  the 
tenants  not  being  disclosed ;  nor  is  it  nec- 
essaiy  that  it  should  be,  until  the  de- 
mandant has  made  out  a.  priiiui  fncic  case." 
Per  Shaw,  C.  J.  Harlow  v.  Rogers,  12 
Cush.  296. 

(b)  In  an  action  under  the  Mississippi 
Pleading  Act  of  1850,  to  recover  posses- 
sion of  land,  the  plaintiff  must  show  a 
complete  title,  or  that  the  defendant  had 
acknowledged  his  title.  Cunningham  v. 
Dean,  33  Miss.  46. 

Tlie  general  rule,  that  the  plaintiff  must 
rely  on  the  strength  of  liis  own  title,  is 
not  applicable  to  suits  concerning  ininincf 
cldiuis  for  neither  party  has  any  legal 
title,  strictly  s])eaking.  In  such  an  action, 
when  tlie  plaintiff  siiows  prior  posses- 
sion, the  defendant  cannot  justify  by 
showing  the  true  title  to  be  outstanding. 
First  occupancy  of  mining  claims  on 
public  lands  gives  a  right,  until  it  is  given 
up  or  transferred.  Richardson  v.  JIo- 
Nulty,  24  Cal.  339. 


10 


146  DISSEISIN,   EJECTMENT,   REAL    ACTION.  [BOOK.   II. 

of  possession  as  against  a  trespasser ;  and,  failing  in  the  former, 
may  then  rely  upon  the  latter. ^  If  he  fails  to  establish  his  right 
to  recover  by  one  title,  he  may  resort  to  another,  and  is  not  obliged 
to  make  any  election  between  them.^ 

§  13.  In  case  of  conflicting  titles,  it  is  a  correct  instruction  to 
the  jury  to  find  for  the  party  having  the  best  title.-^ 

§  14.  In  the  not  uncommon  case  where  both  parties  claim  title 
from  the  same  person,  the  plaintiff  is  not  bound  to  establish  the 
absolute  title  of  that  person;  but  proof  of  prior  possession  in  him 
and  the  plaintiff  is  sufficient.^  It  is  not  necessary  for  either  to 
show  title  beyond  the  person  in  question.^  When  the  plaintiff 
exhibits  a  title  from  the  same  source,  better  than  that  of  the 
defendant,  it  is  sufficient  to  put  him  upon  his  defence.^  The 
plaintiff  need  not  show  title  in  such  source.'^  Neither  is  at  liberty 
to  deny  that  such  person  had  title.^  The  defendant  is  estopped 
from  gainsaying  the  title,  without  shownng  a  better  title  in  him- 
self.^ Where  a  plaintiff  claims  title  through  the  defendant^  he  need 
not  go  farther  back  than  the  defendant,  in  proving  his  title. ^"  (a) 
But  though  both  parties  claim  under  A,  the  defendant  may  show 
that,  before  conveying  to  the  plaintiff,  A  conveyed  to  him,  and 
be  to  B,  without  notice,  and  for  consideration.^^ 

§  15.  It  is  a  necessary  result  of  what  has  been  already  stated, 
that  the  defendant,  being  in  possession  under  color  of  title,  may 
set  up  title  in  a  third  person  ;  ^^  (6)  even  an  outstanding  life- 
estate.^-^  And  where  the  only  question  was,  whether  there  was 
an  outstanding  title  superior  to  that  of  the  plaintiff,  it  was  held 

1  Davison  v.  Gent,  38  Eng.  L.  &  Eq.  7  Hightower  v.  Williams,  38  Geo.  597. 
469.  8  Gaines  v.  New  Orleans,  6  Wall.  642. 

2  St.  Louis,  &c.  V.  Risley,  28  Mis.  415.  ^  Wortiiam    v.  Cherry,   3   Head,  468  ; 

3  Busenius  v.  Coffee,  14  Cal.  91.  Griffin  v.  Sheffield,  38  Miss.  359. 

*  Turner  i'.  Eeynolds,  23  Penn.  199 ;  i**  Byers  v.  Kodabaugh,  17  Iowa,  53. 
Holbrook  v.  Brenner,  31  111.  501  ;  Gantt  "  NewHn  v.  Osborne,  2  Jones,  168. 
V.  Cowan,  27  Ala.  582;  Miller  v.  Surls,  12  Campbell  v.  Campbell,  3  Head,  325; 
19  Geo.  331;  Hughes  v.  Wilkinson,  28  Rupert  v.  Mark,  15  111.  540;  Sutton  v. 
Miss.  600 ;  Clark  i-.  Trindle,  52  Penn.  M'Leod,  29  Geo.  589 ;  Atkins  v.  Lewis, 
492  ;  Gordon  v.  Sizer,  39  Miss.  805  ;  14  Gratt.  30 ;  Nixon  v.  Porter,  38  Miss. 
Paschal  v.  Acklin,  27  Tex.  173  ;  Mer-  401 ;  Cheswell  v.  Eastham,  16  N.  H.  296 ; 
chants'  Bank  v.  Harrison,  39  Mis.  433 ;  Green  v.  Scarlett,  3  Grant,  228.  See  Re- 
Pollock  V.  Maison,  41  111.  516.  formed  v.  Schoolcraft,  5  Lans.  206 ;  Bell 

5  Wood  V.  McGuire,  17  Geo.  303.  v.  Ham,  16  N.  H.  302. 

6  Hoibrook  v.  Brenner,  31  111.  601.  13  Batterton  v.  Yoakum,  17  III.  288. 

(a)  Where  both  parties  claimed  from  a  claimed  title  ;  held,  the  presumption  from 

common  source,  through  different  chains,  the  findings  was,  tliat  tiie  defendant  had 

and  the  cause  was  tried  by  tlie  court,  and  no  title.    Merrill  v.  Chapman,  34  Cal.  251. 

the  facts  found  upon  which  tlie  plaintiff  (b)  Where  the  plaintiff  himself  proves 

claimed  title,  and  that  title  was  in  him,  such  title,  he  cannot  prevail      Ballance  v. 

but  none  of  those  whereon  the  defendant  Flood,  52  III.  49. 


BOOK   II.]  TITLE.  147 

not  to  be  material  for  the  jury  to  consider  whether  the  defendant's 
title  connected  with  it  or  not.^  So  tiie  tenant  may  show,  tiiat  as 
to  a  part  of  the  premises  the  demandant's  grantor  had  no  title, 
and  so  far  defeat  the  recovery,  though  he  himself  sets  up  no  title.^ 
And  it  is  held,  that  the  defendant  may  show  a  presumption  of 
title  in  a  third  person  by  sligiit  circumstances  :  ^  or  possession 
under  color  of  title ;  except  where  the  plaintiff  is  entitled  to  pos- 
session without  a  naked  legal  title,  as  in  some  cases  of  trust.* 
But  an  inchoate  title  is  no  bar  against  a  legal  title.^  And  an  out- 
standing title  in  a  third  person  must  be  one  enforceable  by  action ; 
a  present,  subsisting,  and  operative  title.*^  It  must  exist  at  the 
commencement  of  suit."  And,  as  we  have  seen,  title  in  a  third 
person  is  no  defence  to  an  action  by  one  in  possession  against  a 
trespasser.^  So  where  a  mortgagee,  who  has  taken  possession 
after  breach  of  condition  by  agreement  with  the  mortgagor, 
brings  ejectment  against  a  third  party  ;  the  latter  cannot  defend 
under  the  title  of  another  person,  barred  by  twenty  years'  posses- 
sion of  the  phiintifT.'''  So  a  mere  intruder  cannot  rely  upon  the 
fact,  that  the  plaintiff  claims  under  a  conveyance  which  was  made 
in  pursuance  of  a  verbal  agreement.^°  So  a  defendant  in  eject- 
ment cannot  set  up  an  outstanding  mortgage  of  the  plaintiff  to 
a  stranger,  either  to  show  that  the  plaintiff  has  no  legal  title,  or 
to  show  that  his  actual  title  is  different  from  that  alleged.^'  (a) 

1  Clegg  V.  Fields,  7  Jones,  37.  «  M'Donakl  v.  Sclineirlcr,  27  Mis.  405. 

2  Bruce  v.  Mitchell,  S'J  Maine,  390.  7  Norcuni  v.  D'CKiicli.  17  Mis.  98. 

3  Townsend  r.  Downer,  32  Vt.  183.  8  Bequette  v.  Canlfiekl,  4  Cal.  278. 

4  Fowler  v.  Wliiteman,2  Ohio  (N.S.),  ^  Cha])man  v.  Delaware,  3  Lans.  261. 
270.  1"  Ryan  v.  Tonilinson,  39  Cal.  639. 

5  Mezes  v.  Greer,  1  McAll.  C.  C.  401.  n  Burr  v.  Spencer,  26  Conn.  1G9. 

(o)  A  defendant  in  possession,  though  a  former  action.     White  v.  Evans,  47  Barb, 

naked  trespasser,  may  show  that  the  plain-  179. 

tiff  has  no  right  to  possession,  by  a  deed  The   defendant  may  show  a  title  ac- 

of  the  plaintiff's  grantor  executed  before  quired  after  commencement  of  the  suit, 

any  conveyance  to  the  jilaintitf.     Mallett  Tustin    v.  Faught,  23   Cal.  237.     As    by 

V.  Uncle  Sam,  &c.  Co.  1  Nev.  188.  deeds  dated  afier  commencement  of  the 

When   the   plaintiff  avers    that  he   is  action.     Moore  r.  Tice,  22  Cal.  olu.    The 

owner,  and  the  answer  denies  it,  the  de-  defendant  cannot  jjrove  a  conveyance  of 

fendant  may  show  that  the  plaintiff  has  the  land  by  the  plaintiff  after  coinmence- 

exccuted  a  deed  to  A  before  bringing  the  ment  of  the  action,  unless  such  defence  is 

suit,  although  the  defendant  does  not  con-  set   up  by  the   original  or   sujiplemental 

nect  himself  with  tlie  title  of  A.     Dyson  answer.     Moss  ;•.  Shear,  30  Cal.  4(17.    Ac- 

r.  Bradshaw,  23  Cal.  528.  cording  to  the   system    of  pleading   and 

A  judgment  for  the  land,  obtained  by  a  i)ractice  in  common-law  ca.-es  in  the  courts 

stranger  against  the  defendant,  is  inadmis-  of  California,  adopteil  by  the  Circuit  Court 

sible  to  show  a  prior  and  sui)erior  title  to  of  the  United  States  in  that  State,  a  title 

that  of  the   plaintiff,  unless  accom])anied  acquired    by    the    defendant    after    issue 

by  independent  proof,  showing  an  ancient  joined  can  only  be  set  up  by  a  supple- 

and  superior  title  in  the  plaintid'  in  the  mental  answer,  in  the  nature  of  a  plea 


148  DISSEISIN,   EJECTMENT,   REAL    ACTION.  [bOOK   II. 

§  15  a.  It  is  held  that  a  reversioner  or  reraainder-man  cannot 
recover  possession  upon  tlie  ground  that  the  owner  of  the  life- 
estate  has  forfeited  by  waste.^ 

§  15  b.  At  common  law,  the  grantee  of  a  reversion  could  not 
enter  or  bring  ejectment  for  breach  of  the  covenants  of  a  lease  ; 
and  the  statute  of  32  Henry  VIII.,  giving  the  right  of  entry  and 
of  action  to  such  grantee,  is  confined  to  leases  under  seal.'-^ 

§  15  c.  Ejectment  will  lie  to  recover  a  life-interest,  derived  from 
an  agreement,  by  the  owner  of  the  land,  to  allow  the  plaintiff  to 
put  a  saw-mill  on  the  premises  for  the  purpose  of  carrying  on 
the  business  of  sawing  lumber  "  as  long  as  he  (the  plaintiflf) 
wished."  ^ 

§  15  d.  The  plaintiff  in  ejectment,  having  shown  title  to  a  por- 
tion of  the  land  in  dispute,  cannot  recover  the  rest."^ 

§  15  e.  When  a  plaintiff  in  ejectment  has  filed  a  description  of 
the  premises  sued  for,  it  is  the  duty  of  the  defendant,  if  he  does 
not  mean  to  take  defence  for  the  whole,  to  file  with  his  plea  a 
description  of  that  part  for  which  he  takes  defence.  If  he  pleads 
the  general  issue,  and  files  no  specification  of  the  extent  to  which 
he  means  to  defend  ;  he  must  be  understood  as  defending  for  the 
whole,  and  cannot  in  a  court  of  error  complain  that  judgment 
passed  for  more  than  was  in  controversy.^ 

§  16.  It  is  the  general  rule,  that  an  equitable  estate  will  not 
sustain  a  writ  of  entry .*^  An  action  to  recover  possession  cannot 
be  maintained  upon  a  merely  equitable  title,  not  seeking  the  pos- 
session as  incidental  to  a  specific  performance  or  other  equitable 
relief,  and  the  defendant  not  being  the  party  who  is  bound  to  con- 
vey to  the  plaintiff.'^  (a)     Thus  a  cestui  que  trust  cannot  recover 

1  Patrick  v.  Sherwood,  4  Blatchf.  C.  C.  ^  Cliapin  v.  Universalist,  &c.  8  Gray, 

112.  580;    Smith    v.    M'Cann,    24   How.    398; 

■■^  Sheets  v.  Selden's  L.,  2  Wall.  177.  Emeric  v.  Penniman,  26  Cal.  122  ;  Thomp- 

3  Stancel  r.  Calvert,  1  Wins.  (N.  C.)  son  v.  Lyon,  33  Mis.  219.  See  Baptist, 
No.  1,  104.  &c.  V.  Turner,  6  M'L.  48 ;  Gloninger  v. 

4  Fenwick  v.  Gill,  34  Mis.  194.  Hazard,  42  Penn.  389. 

5  Hill  V.  Hill,  43  Penn.  521.  l  Peck  v.  Newton,  46  Barb.  173. 

puis  darrein  continuance.  Hardy  v.  Johnson,  during  his   ownership,  and   witiiin    eight 

1  Wall.  371.     A  conveyance  by  the  plain-  years  before  tlie  acts  complained  of.    Held, 

tiff,  pending  the  suit,  to  a  third  person,  such    evidence    was    admissible,   though 

does   not   necessarily   defeat    the   action,  liable  to  be  deprived  of  all  force  by  subse- 

Barstow  v.  Newman,  34  Cal.  00.  quent  possession  of  the  complainant.    Hale 

In  forcible  entry  and  detainer,  the  de-  v.  Wiggins,  33  Conn.  101. 
fendants  offered  evidence,  that  a  former  (a)  In   1838,  M.  executed   a  deed  de- 
owner,  under   whom   they   claimed,  liad  signed  to    convey     to  W.   the    premises 
been  in  undisputed  possession  at  one  time  then  in  dispute  (with  other  lands),  but  by 


BOOK   II.] 


EQUITABLE   TITLE. 


149 


against  a  trustee,  unless  the  circumstances  raise  the  presumption 
of  a  surrender.!     (See  §  46.)  (a) 

§  17.  Tiiis  rule,  however,  has  been  extensively  changed  in  the 
United  States,  generally  by  the  express  terms  or  natural  con- 
struction of  the  statutory  law.  (i)  Thus,  under  the  practice  in 
California,  possession,  with  an  equitable  title,  is  as  good  as  a  legal 
title.^  And  the  same  practice  is  adopted  in  Pennsylvania,''  where 
ejectment  on  an  equitable  title  is  in  substance  a  bill  for  specific 
performance,  and  is  therefore  governed  by  general  principles  of 
equity.* 


-  Brown  v.  Combs,  5  Dutcli.  36. 
2  Morrison  v.  Wilson,  13  Cal.  494. 

mistake  it  did  not  describe  those  premises. 
In  1^54,  M.  c()nveyc<l  them  to  II.,  int'orm- 
inji  liim  tliat  W.  had  bou<iht  and  paid  for 
them,  and  of  the  mistake.  S.  subsequently 
obtained  possession,  claiminji  under  H. 
Afterwards  E.,  ciaiminK  under  W.,  ob- 
tained a  decree  in  an  action  a<;ainst  AV. 
and  JM.,  by  wliicli  tiie  latter  was  adjudged 
to  convey,  and  he  accordingly  did  convey, 
the  premises  to  E. ;  but  neither  H.  nor  S. 
was  a  party  to  sucli  action.  In  ejectment 
by  E.  against  S.  ;  held,  the  legal  title 
became  vested  in  H.  under  the  deed  to 
liim  from  M.,  so  that  tiiis  suit  could  not 
be  maintained.     Eaton  v.  Smith,  19  Wis. 

(a)  Proof  of  an  equitable  title  does  not 
sustain  the  averment  of  a  legal  title. 
Groves  v.  Marks,  32  Ind.  319. 

The  only  proper  plaintiff,  in  an  ac- 
tion for  the  recovery  of  real  estate,  is  the 
part}'  hohhng  the  legal  title,  although  only 
the  trustee  of  an  express  trust.  Board- 
man  v.  Heckwitli,  18  Iowa,  '292. 

Tlie  rule,  that  the  holder  of  an  equita- 
ble title  cannot  recover  it  in  ejectment, 
applies  to  the  grantee  of  a  conveyance  in 
trust  to  secure  payment  of  debts,  and  his 
grantee.    Heard  v.  Eaird,  40  Miss.  793. 

Tiie  same  rule  applies  to  the  case 
where  the  title  of  the  defendant  is  ob- 
tained by  fraud.  Rountrce  v.  Little,  54  111. 
323.  And  in  ejectment  it  is  not  open  to 
the  defendant  to  sliow,  any  fartlier  than 
is  disclosed  in  the  deed,  bywhom  tiie  con- 
sideration money  was  paid,  for  the  jiur- 
pose  of  establishing  a  trust.  Chiniquy  v. 
Catholic,  41  111.  148. 

Where  one  holding  land  in  trust  for 
minor  heirs,  imder  a  contract  of  sale, 
surrendered  the  contract,  and  took  a  new 
one  in  her  own  name,  and  assigned  it  ; 
held,  in  ejectment  by  one  of  the  heirs 
against  the  assignee,  evi<lence  was  admis- 
sible, that  the  defendant  fraudulently  pro- 


3  Meyers  v.  Hill,  46  Penn.  9. 

*  Deitzler  v.  Mishler,  37  Penn.  82. 

cured  such  surrender  and  assignment,  and 
paid  less  than  the  full  value  of  the  prop- 
erty.    Hall  i\  Vanness,  49  Penn.  457. 

In  an  action  to  recover  possession,  the 
defendant  put  in  a  general  denial,  and 
claimed  title  under  a  trust-deed  from  the 
plaintiff,  the  sufficiency  of  which  the 
])laintiff  disi>ute(l.  The  defendant  sliowed 
that,  after  taking  possession  mider  the 
deed,  he  had  obtained  a  conveyance  from 
the  plaintiff's  grantees  under  a  deed  prior 
to  the  trust-deed.  Held,  tlie  evidence 
was  admissible,  and  a  nonsuit  proper. 
Scott  t'.  Crego,  47  Harb.  o.t.j. 

In  ejectment,  brought  by  tlie  grantee 
in  a  quitclaim  daad  against  his  grantor, 
who  was  not  shown  to  be  the  owner ; 
held,  tlie  grantor  might  show  that  subse- 
quently to  the  execution  of  his  deed  he 
was  ])ut  in  charge  of  the  premises,  and 
continued  in  ]iossession  as  agent  of  the 
true  owner.  Eranklin  v.  Dorland,  28  Cal. 
175. 

(b)  See  Neave  v.  Avery,  30  Eng.  L.  & 
Eq.  471.  Where  a  party  in  his  complaint 
relies  solely  upon  his  legal  title  to  the 
whole  premises,  he  cannot  on  trial  rely  on 
the  equitable  title.  Seaton  v.  Son,  32 
Cal.  481. 

Where  the  petition  contained  a  count 
in  ejectment,  and  also  a  count  in  the 
nature  of  a  bill  in  equity,  praying  that  a 
frauchilent  conveyance  might  be  annulled, 
and  the  plaintifl"  have  judgment  for  pos- 
session ;  the  court  rejecteil  the  t'ount  in 
ejectment  as  surplusage,  and.  disregarding 
the  praj'er  for  possession  as  boyond  the 
jurisiliction  of  a  court  of  equity,  decreed 
simjily  that  the  fraudulent  conveyance 
should  be  null  and  void.  Pevton  v.  Hose, 
41  Mis.  257. 

A  party  cannot  avail  himself  of  an 
equitable  title  unless  it  has  been  pleaded. 
Cadiz  V.  Majors,  33  Cal.  288. 


150  DISSEISIN,   EJECTMENT,   REAL   ACTION.  [BOOK  II. 

§  18.  It  is  also  the  general  rule,  that  an  equitable  title  consti- 
tutes no  defence  to  the  action  of  ejectment. ^     (See  §  46.) 

§  19.  And  the  rule  has  been  applied,  even  where  the  general 
terms  "  title  or  interest "  are  used  in  a  statute.  The  title  must 
be  leg-aU  Thus  it  is  no  defence  to  a  writ  of  entry,  that  the  de- 
mandant holds,  subject  to  a  resulting  trust  in  favor  of  the  tenant.^ 
So  one  holding  a  naked  legal  title  cannot  set  up,  in  defence  to  an 
action  by  one  in  possession,  and  claiming  an  equitable  title,  a 
countervailing  equity  in  a  third  person,  who  is  also  a  party  de- 
fendant, and  is  defaulted.^  So  a  defendant  with  a  legal  title  is 
not  bound  to  show  in  the  first  instance  a  good  equitable  title :  it 
is  for  the  plaintiff  to  show  a  superior  equitable  title  in  himself.^ 
More  especially,  a  defendant  in  ejectment  cannot,  on  trial,  rely  on 
an  equitable  defence  not  stated  in  his  answer,  which  sets  up  a 
legal  defence.*^  And  two  inconsistent  equitable  defences  cannot 
be  brought  forward  for  the  court  to  choose  between  them.' 

§  20.  This  rule,  however,  as  in  case  of  the  plaintiff,  has  been 
changed  in  many  of  the  States.  Thus,  in  New  York,  under  the 
amended  Code,  the  defendant  may  set  up  an  equitable  title  in 
himself  or  another,  and  a  claim  for  the  conveyance  of  the  legal 
estate.^  Ejectment  cannot  be  maintained  against  one  having  an 
equitable  title,  which  he  might  enforce  by  a  bill  for  specific 
performance.  And  the  plaintiff  cannot  object  that  the  agreement 
to  convey,  being  unwritten,  is  invalid  under  the  statute  of  frauds,  if 
he  himself  violated  his  obligation  to  execute  a  written  agreement.^ 
Though,  in  order  to  defeat  the  action,  the  defendant  must  become 
an  actor,  and  claim  affirmative  relief ;  and  his  answer  must  con- 
tain all  the  elements  of  a  bill  for  specific  performance. ^'^  An 
equitable  right  to  possession,  in  a  defendant  in  ejectment,  as 
against  the  plaintiff,  entitles  him  to  judgment. ^^  So  an  equitable 
mortgage,  after  condition  broken,  is  a  good  defence,  under  the 
Code,  to  ejectment  by  an  execution  purchaser,  claiming  that  the 
mortgagor  had  conveyed  fraudulently.      If  such  purchaser  de- 

1  3  Head,  325  ;  Larriviere  v.  Madigan,  ^  Kennedy  v.  Daniels,  20  Mis.  104. 
1  Dill.  455 ;  Stinebau^h  v.  Wisdom,  13         ^  Cox  v.  Cox,  26  Penn.  375. 

B.  Men.  467  ;  Page  v.  Cole,  6  Clarke,  153 ;  8  Safford  v.  Hynds,  39  Barb.  625 ;  15 

Wales  V.  Bogue,  31  111.  464.  Barb.  365. 

2  Langford  v.  Love,  3  Sneed,  308.  ^  Carpenter  v.  Ottley,  2  Lans.  451. 

3  Crane  v.  Crane,  4  Gray,  323.  l"  Dewey   v.    Hoag,    15  Barb.   365 ;   2 

4  McKenzie  v.  Perrill,  15  Ohio  St.  162.  Lans.  451. 

5  Barnes  v.  Jamison,  24  Tex.  362.  "  Thurman  v.  Anderson,  30  Barb.  621. 


BOOK   11.]  EQUITABLE   TITLE.  151 

sires  the  possession,  he  must  file  his  bill  to  redeem.^  So,  under 
the  statute  allowing  equitable  defences  to  an  ejectment,  the  de- 
fendant may  explain  a  sheriff's  deed,  by  showing  by  parol  that  a 
part  of  the  land  it  appears  to  convey  was  expressly  excepted  at  the 
sale  ;  and  may  have  the  deed  treated  as  reformed?  And,  under 
the  Code,  the  defendant,  in  an  action  to  recover  possession, 
may  rely  upon  any  equitable  defence.  If  he  holds  under  an 
agreement  to  purchase,  he  may  set  up  the  same  facts  which 
in  a  court  of  equity  would  entitle  him  to  a  conveyance.  Where 
there  has  been  a  full  performance  of  a  parol  contract  for  sale  ;  the 
deed  must  be  regarded  as  actually  delivered,  and  the  title  vested 
in  the  defendant.^  So,  in  Wisconsin,  a  defendant  may  show  a 
mistake  in  the  description  of  his  deed.*  So,  under  the  Missouri 
Practice  Act  of  1849,  an  equitable  defence  may  be  set  up.^  And 
where  a  deed  of  trust  is  made  to  secure  a  debt,  and  the  beneficiary 
conveys  the  land  ;  in  a  suit  against  the  second  grantee  by  the 
first  grantor,  the  defendant  is  not  estopped  from  setting  up  his 
equitable  title,  until  the  debt  is  paid.^  So,  in  Kentucky,  in  an 
action  to  recover  possession  of  land,  a  defendant  may  set  up  and 
rely  upon  any  equitable  or  legal  defences,  and  either  party  may 
move  to  transfer  an  equitable  issue,  presented  by  the  pleadings, 
to  the  equity  docket ;  but,  if  no  such  motion  be  made,  the  issue 
must  be  disposed  of  by  the  court,  before  judgment  can  be  ren- 
dered for  the  plaintiff."  Under  the  (Iowa)  Revision  of  1860,  an 
equitable  defence  may  be  pleaded.^  The  defendant  may  set  up 
all  his  defence,  legal  or  equitable.  When  the  defence  is  equita- 
ble, it  is  to  be  viewed  in  the  same  manner,  as  to  substance,  as  if 
made  the  basis  of  a  petition  in  chancery  for  affirmative  relief.^ 

§  21.  An  equitable  defence  in  tlie  answer  presents  a  question 
for  the  court  to  decide. ^*^  In  case  of  equitable  defence,  the  answer 
must  have  the  requisites  of  a  bill  in  equity.  The  title  must  be 
such  as  the  decree  may  make  a  legal  one,  available  as  an  estop- 
pel.^^  Whether  an  answer  states  a  case  within  the  equity  juris- 
diction  of  the  court,  must  be  determined  by  the  answer.     If  an 

1  Chase  v.  Peck,  21  N.  Y.  58L  8  Rosierz  v.  Van  Dam,   16  Iowa,  175; 

-  Bartlett  v.  Judd,  21  N.  Y.  200.  Van  Orman  v.  Spafford,  ib.  1^6  ;  Kramer 
*  Trapliagen  v.  Trapliagen,  40  Barb.     v.  Conger,  ib.  434  ;  Trentiss  v.  Brewer,  17 

537.  Wis.  635. 

*■  Prentiss  v.  Brewer,  17  Wis.  635.  ^  Penny  v.  Cook,  19  Iowa,  538. 

'=>  Ilayden  v.  Stewart,  27  iMiss.  286.  l"  Downer  ;•.  Smith,  24  Cal.  124. 

6  Johnson  v.  Houston,  47  iMis.  227.  li  Biun  c.  Uobertson,  24  Cal.  146  ;  Dow- 

T  Petty  V.  Malier,  15  B.  Mou.  591.  ner  v.  Smith,  ib.  124  ;  19  Iowa,  538. 


152  DISSEISIN,   EJECTMENT,   REAL   ACTION.  [BOOK  II. 

answer,  where  both  parties  claim  under  a  common  grantor,  sets 
up  a  legal  title  in  the  defendant,  and  a  parol  contract  by  the  . 
common  grantor  to  convey  to  him,  and  an  entry  under  it,  and 
that  the  plaintiff  subsequently  purchased  and  entered  upon  the 
land,  with  notice :  the  defence  is  both  legal  and  equitable ;  and, 
if  equitable  relief  is  prayed  for,  the  court  may  first  try  the 
equitable  defence,  and,  refusing  the  plaintiff  a  jury  trial,  grant 
the  equitable  relief.^ 

§  22,  The  question  of  equitable  title  in  plaintiff  or  defendant 
has  often  arisen,  in  case  of  a  purchase  of  the  land,  not  accom- 
panied or  followed  by  an  actual,  executed  conveyance.  Upon 
this  point  it  is  held,  that  the  defendant,  in  a  writ  of  entry,  cannot 
defend  against  the  legal  title  of  the  plaintiff,  by  proving  that  he 
entered  under  a  written  agreement  with  the  plaintiff  for  the  pur- 
chase of  the  demanded  premises,  and  since  the  entry  had  paid 
the  stipulated  price,  and  was  entitled,  by  performance  of  the 
agreement,  to  a  conveyance  of  the  legal  estate.^  So  a  sheriff's 
vendee  cannot,  where  the  execution  defendant  is  the  father  who 
has  paid  the  purchase-money  and  taken  the  title  in  his  son's  name, 
maintain  ejectment  against  the  son.'^  So  a  bond  for  title,  the  sale 
being  under  a  mortgage,  cannot  defeat  ejectment  by  the  vendor, 
brought  either  against  the  obligee  in  the  bond  or  a  purchaser  of 
his  rights  ;  even  although  the  purchase-money  has  been  paid  to 
the  vendor.'* 

§  23.  A  different  doctrine,  however,  is  now  adopted  in  many 
States,  either  by  direct  statutory  provision,  or  by  way  of  natural 
and  necessary  inference  from  statutes  or  usages  relating  to  law 
and  equity.  Thus  it  is  held  that  a  parol  sale,  delivery  of  posses- 
sion, and  payment  of  the  whole  or  even  most  of  the  price,  are  a 
defence  to  an  ejectment.^  And  a  vendee  once  fairly  in  possession 
of  land  under  articles  of  purchase,  but  illegally  ousted,  may 
recover  in  an  action  of  ejectment,  without  bringing  into  court  the 
balance  of  purchase-money  due.^  So  a  verbal  contract  partly 
performed,  as  where  the  party  has  entered  and  in  good  faith  made 
valuable  improvements,  may  be  set  up  as  a  defence  to  ejectment 
by  the  vendor.    And  if  the  answer  set  out  the  contract  as  verbal, 

'  Bodley  v.  Ferguson,  30  Cal.  511.  5  Young  v.  Montgomery,  28  Mis.  604  ; 

2  Elae;.'Pennock,38N.  H.  154;  Moody  Traphagen  u.  Traphagen,  40  Barb.  537; 
V.  Farr,  33  Miss.  192.  Patterson  v.  Wilson,  19  Penn.  380  ;  Tibeau 

3  You  V.  Flinn,  34  Ala.  409.  v.  Tibeau,  19  Mis.  78. 

*  Collins  V.  Robinson,  33  Ala.  91.  *>  D'Arras  v.  Keyser,  26  Penn.  249. 


BOOK   II.]  EQUITABLE   TITLE.  153 

but  also  set  out  tlie  facts  of  part-performance,  it  is  not  demur- 
rable.' So  ejectment  cannot  be  maintained  by  one  who  lias  sold 
the  land  by  bond,  taken  a  note  for  the  price,  and  transferred  the 
note. 2  And  a  purchaser,  having  tendered  the  balance  due,  and 
demanded  a  deed,  may,  upon  tlie  trial  of  an  ejectment  suit  against 
him,  pay  the  nioney  into  court,  without  interest  after  the  ten- 
der.3  (a ) 

§  24.  Even,  however,  where  this  more  liberal  practice  is  adopted, 
it  is  subjected  to  equitable  conditions  and  restrictions  in  favor  of 
the  legal  owner.  Thus  it  is  not  by  legal  right,  but  by  equitable 
defence,  that  one  holding  under  another  by  title-bond  can  resist 
ejectment;  and  generally  he  must  do  that  by  showing  full  per- 
formance or  readiness  to  perform;  and,  if  he  has  failed  to  perform, 
it  is  incunibent  upon  him  to  show  a  waiver  of  his  default,  or  an 
equitable  excuse  for  it,  and  to  make  reparation,  in  some  way  or 
other,  by  compensation  or  damages.'^  So  a  party,  who  has  an 
equity  resulting  from  the  payment  of  a  part  of  the  purchase- 
money,  cannot  recover  in  ejectment,  without  a  tender  of  the  bal- 
ance of  the  unpaid  purchase-money  ;  at  most,  he  can  only  have  a 
conditional  verdict.^ 

§  25.  Ejectment  is  sometimes  provided  as  the  appropriate 
remedy,  in  case  of  purchase,  to  enforce  pa^'ment  of  the  price;*' 
or  to  compel  specific  performance^  And  this  without  previous 
notice.^ 

§  2G.  The  condition  annexed  to  a  recovery,  in  an  ejectment  for 
purchase-money,  is,  that,  upon  performance  of  the  condition,  the 
recovery  shall  be  released,  and  not  the  title  to  the  land.''  In  an 
ejectment  to  enforce  payment  of  an  instalment,  where  a  condi- 
tional recovery  is  had,  and  the  money  paid  in  accordance  with  the 
finding;  the  title  still  remains  in  the  plaintifi",  as  a  security  for  the 
payment  of  the  unpaid  instalment.^'^ 

1  Arsinollo  v.  Ivlinsjer,  10  Cal.  150.  v.  Lee,  42  ib.  165;  Tavlor  v.  Abbott,  41 

2  Tompkins  r.  Williams,  lU  Geo.  572.  ib.  352  ;  Hill  r.  Oliphaiit,  ib.  -M'A. 

3  Thomi)son   v.    McKinley,   47   Peiin.  ^  Corson  i;.  Muloaiiv,  4'.t  I'cnn.  88. 
353.  8  Dean  v.  Comstock.  :'.2  111.  173. 

<  IliU  r.  Still,  19  Tex.  76.  »  Ilamm  v.  Beaver,  1  Grant,  448. 

»  CliaiUvick  V.  Felt,  35  Penn.  305.  lo  Ib. 

^  Haniin  v.  Beaver,  31  Penn.  58  ;  Laner 

(<;)  But  where  the  defendants  alleged  a  defendants,  witliin  a  reasonable  time,  one- 
parol  jrift  of  land  by  the  plaintiff's  ances-  tenth  of  the  value  of  the  improvements 
tor  to  their  own,  it  was  held  error  to  in-  made  by  their  ancestor.  Such  an  assess- 
struct  the  jury,  that,  if  such  contract  was  nieut  of  damajics,  in  an  action  of  eject- 
proved,  they  niifjht  fiiiil  for  the  plaintitf,  nient,  is  not  only  novel,  but  imjiracticable 
upon  condition  that  he  should  pay  to  the  and  dangerous.     Gill  v.  Gill,  37  Penn.  312. 


154  DISSEISIN,   EJECTMENT,   REAL   ACTION.  [BOOK  II. 

§  27.  Where  the  plaintiff  brought  ejectment  on  his  legal  title, 
and  the  defendant  set  up  a  contract  for  the  purchase  of  the  land, 
and  tendered  the  balance  unpaid  of  the  purchase-money ;  held, 
the  plaintiff  was  entitled  to  judgment  for  nominal  damages  and 
costs. 1 

§  28.  A  sold  land  to  B  for  $1,500,  a  deed  to  be  given  when  the 
whole  purchase-money  should  be  paid.  B  went  into  possession ; 
but,  neglecting  to  pay  the  whole  purchase-money  when  due,  A 
brought  ejectment.  B  confessed  judgment,  to  be  released  on 
payment  of  the  balance  due,  which  was  $322.04,  on  or  before  a 
certain  day.  The  sum  was  not  paid  on  the  day,  but  was  tendered 
a  few  weeks  afterwards.  Held,  A  was  entitled  to  his  writ  of  pos- 
session.2 

§  29.  In  ejectment  to  enforce  specific  performance  of  a  sale,  an 
award  of  judgment,  to  be  released  on  payment  of  a  certain  sum, 
is  not  an  ordinary  judgment  at  law,  but  contains  also  the  sub- 
stance of  a  decree  in  equity.  As  the  law  of  Pennsylvania  stood  in 
1839,  it  was  conclusive  of  the  rights  of  the  parties.  Subsequent 
legislation  has  had  no  retrospective  operation  to  divest  rights  thus 
vested.^ 

§  30.  The  plaintiff  took  out  a  writ  of  hah.  fac.  poss.  on  such 
judgment,  which  was  returned  executed,  the  tenant  in  possession 
having  agreed  to  hold  under  the  plaintiff,  and  having  taken  a 
lease  from  him.  Held,  that,  when  the  writ  was  set  aside  by  the 
court  as  improvidently  granted,  the  tenant  was  thereby  restored 
to  his  condition  of  subordination  to  his  former  landlord  without  a 
writ  of  restitution.^ 

§  31.  An  ejectment  by  cestui  que  trust  to  compel  a  trustee  to 
execute  a  conveyance,  on  payment  of  the  purchase-money  by  the 
plaintiff,  is  in  the  nature  of  a  bill  in  equity,  involving  an  account 
of  the  rents  and  profits,  and  no  subsequent  action  of  covenant  for 
them  can  be  entertained.^ 

§  32.  In  ejectment  to  enforce  payment  of  unpaid  purchase- 
money,  the  plaintiff  recovered  a  judgment,  to  be  released  on 
payment  of  a  stipulated  sum  on  or  before  a  day  certain,  when  a 
good  and  sufficient  deed  was  to  be  delivered  to  the  defendant. 

1  Cadwallader  v.  Berkheiser,  32  Penn.  ^  Coughanour  v.  Bloodgood,  27  Penn. 
43.                                                                      285. 

2  Chew  V.  Phillippi,  32  Penn.  205.  *  lb. 

6  Cox  V.  Henry,  32  Penn.  18. 


BOOK   II.] 


EQUITABLE   TITLE. 


155 


Before  the  appointed  day,  the  defendant  obtained  an  award  of 
arbitrators  against  the  plaintiff  in  a  personal  action,  which  award 
was  a  lien  in  favor  of  the  defendant  on  the  plaintiff's  interest  in 
the  land.  The  arrears  of  purchase-money  were  not  paid  at  the 
appointed  day.  The  plaintiff  filed  a  deed,  caused  it  to  be  tendered 
to  the  defendant,  sued  out  a  writ  of  possession,  and  obtained  posses- 
sion of  the  land.  Held,  that,  by  the  failure  of  the  defendant  to 
pay,  the  plaintiff's  title  became  absolute  ;  that  the  award  was  no 
excuse,  though,  had  the  defendant  paid  the  sum  due  into  court, 
he  would  have  extinguished  the  plaintiff's  lien.'  (a) 


1  Waters  v.  "Waters,  32  Penn.  307. 


(a)  To  an  action  of  rip;ht,  for  possession  of 
real  estate,  it  is  a  good  equitable  defence, 
that  tile  defendant  tool<  possession  under 
a  contract  of  purcliase  witli  tlie  plaintiff's 
grantor,  of  which  the  piaintiti"  had  notice 
wlien  he  bouglit,  and  which  tlie  del'cndant 
had  been  at  all  times  ready  to  perform. 
Warren  v.  Crew,  22  Iowa,  315. 

Ejectment,  as  a  means  of  compelling 
specific  performance,  is  not  taken  away, 
in  Pennsylvania,  by  the  grant  of  equity 
powers  to  the  courts  of  common  pleas. 
Corson  V.  Mulvany,  4'.)  Penn.  88.  A  jury 
may  find  the  facts  in  relation  to  a  parol 
contract  for  tiie  sale  of  land,  in  an  action 
of  ejectment  by  tlie  vendor  to  recover  the 
propert}',  notwithstanding  tlie  statute  of 
frauds,  and  return  a  vcrilict  for  the  plain- 
tiff, to  be  released  on  payment  of  the  un- 
paid purchase-money.  McGibbeny  r.  Bur- 
master,  53  Penn.  332.  One  of  several 
heirs  contracted  to  sell  his  share  of  an 
estate  to  another,  who  paid  part  of  the 
purcliasc-nioiicy,  went  into  possession  of 
the  wiiole,  and  continued  in  possession 
for  about  seven  years.  Held,  this  raised 
an  equity,  and,  in  an  action  of  ejectment 
by  the  vendor,  it  was  proper  to  direct  a 
conditional  verdict.  Webster  ?'.  Webster, 
63  Penn.  161.  Where  there  has  been  a 
sale  of  land  under  articles  of  agreement, 
part  comjiliancc  therewitli,  and,  in  an 
ejectment  brought  to  enforce  payment  of 
balance  due,  judgment  confessed  in  1844 
by  the  vendee  to  the  vendor,  to  be  released 
on  payment  of  a  stipulated  sum  witliin 
one  year  ;  that  judgment  is  not,  under  the 
Act  of  Ma3'  5,  1841,  conclusive  against  the 
equitable  title  of  the  vendee.  But,  astliat 
Act  is  repealed  by  Act  April  21,  184G, 
which  gave  the  defendant  two  years  after 
its  date  to  pay  the  money,  commence  an 
action,   and   enforce    the   contract  ;    the 


failure  to  bring  the  action  within  that 
time  concluded  his  rights  mider  the 
agreement.  Waters  v.  Bates,  44  Penn. 
473.  A  verdict  and  judgment,  in  an  action 
of  ejectment  brought  to  compel  specific 
execution  of  an  agreement  for  the  sale  of 
land,  is  not  conclusive,  or  a  bar  to  any 
subsequent  action ;  unless  it  be  shown 
distinctly  that  the  equitable  title  was 
directly  in  issue  and  decided  ujion. 
Meyers  v.  Hill,  46  Penn.  9.  See  Seit- 
zinger  v.  Eidgway,  9  Watts,  396.  The 
fact,  that  the  equity  claimed  was  de- 
cided, may  be  shown  by  parol  testi- 
mony, and  need  not  appear  by  the  record. 
Where,  in  a  third  action  lietween  the 
same  parties  or  their  privies  (the  first 
having  been  decided  in  1825,  in  favor  of 
the  ])arty  under  whom  the  jjlaintiff  now 
claimed,  and  the  second,  in  1843,  in  favor 
of  the  defendant),  the  plaintiff  set  up  the 
first  verdict  and  judgment  as  conclusive, 
because  they  were  given  upon  tlie  equita- 
ble title  of  the  party  then  defendant,  but 
did  not  show  tliat  his  equitable  title  was 
the  sole  question  in  issue,  and  the  sole 
ground  of  the  verdict ;  held,  the  first  ver- 
dict and  judgment  were  not  conclusive.  lb. 
In  ejectment  to  enforce  payment  of  i)ur- 
chase-money,  the  vendee  having  proved 
that  tlie  title  to  a  part  of  the  jiremises  was 
detective,  the  plaintiff  is  not  entitled  to  a 
verdict,  to  be  released  on  payment  of  the 
whole  purchase-money,  or  that  portion 
remaining  unpaid.  But  if  the  plaintiff 
can  make  title  to  one-half  only,  the  defend- 
ant may  elect  to  take  it,  and  will  lie 
entitled  to  a  verdict,  if  he  has  paid  one- 
half  of  the  purchase-monej'  with  interest : 
if  less,  the  plaintiff  will  be  entitled  to  the 
verdict,  to  be  released  on  payment  of  that 
portion  which  still  remains  unjiaid.  If, 
liowever,  the  defendant  elects  to  rescind 


156 


DISSEISIN,    EJECTMENT,   REAL    ACTION. 


[book  II. 


§  33.  As  lias  been  often  suggested,  in  the  action  of  ejectment, 
one  party  or  both  generally  rely  upon  documentary  evidence  of 
title.     Of  course  it  is  no  part  of  the  plan  of  the  present  work,  to 


the  contract,  tlie  verdict  should  be  for  the 
plaintiff,  on  condition  tiiat  he  repays 
by  a  stipulated  time  wliatever  purcliase- 
money  has  been  jiaid  to  him,  and  makes 
com])ensation  for  tiie  defendant's  improve- 
ments, from  wliicli  the  ])laintiff  would  be 
entitled  to  recoup  the  damages  by  waste. 
Erwin  v.  Myers,  46  Penn.  96.  A  con- 
sideration of  a  deed,  which  amounts  to  a 
covenant,  cannot  be  enforced  by  eject- 
ment.    Perry  v.  Scott,  51  Penn.  119. 

Ejectment  may  be  brought  by  a  vendor 
of  land  against  liis  vendee,  in  possession 
under  a  contract  to  purchase,  witliout 
notice  to  quit,  or  demand  of  possession, 
in  case  of  default  in  making  any  of  the 
payments  or  in  performing  any  of  the  con- 
ditions or  covenants  specified  in  the  con- 
tract.    Pierce  v.  Turtle,  53  Barb.  155. 

Tlie  answer  in  a  suit  to  recover  the  pos- 
session of  land  alleged,  that  the  plaintiff 
received  a  title  bond,  but  failed  to  make 
the  stipulated  payments,  and  left  the 
State  without  leaving  anj'  property  there  ; 
that  a  decree  was  entered  against  him  at 
the  suit  of  A  ,  the  owner  of  the  land, 
ordering  a  sale,  unless  he  should  pay  the 
purcliase-monej'  in  thirty  days,  and  that 
on  his  default  t!ie  land  was  sold  to  A  , 
and  by  him  to  tlie  defendant.  Tlie  reply 
admitted  these  facts,  but  alleged  the  sale 
to  be  invalid,  because  tliere  was  no  ap- 
praisement and  no  deed  to  the  purchaser  ; 
that  tlie  defendant  had  notice  of  the 
plaintiff's  title;  and  that  the  rents  since 
the  plaintiff  liad  been  out  of  possession 
were  more  than  equal  to  the  balance  of 
the  purchase-money  due  from  him  and 
interest  thereon.  Held,  the  answer  pre- 
sented a  good  defence,  which  the  reply 
failed  to  meet.  Stehman  v.  CruU,  26 
Ind.  436. 

The  possession  of  the  vendee  under 
contract  for  a  sale  becomes  tortious, 
immediately  upon  his  failure  to  comply 
with  the  contract,  and  the  vendor  has 
thereupon  an  immediate  right  of  action. 
Non-compliance  with  a  request  to  pay 
the  purchase-money,  on  the  ground  that 
the  vendee  is  not  prepared  to  do  so,  and  a 
return  to  the  vendor,  without  promise  to 
pay  at  a  future  time,  and  without  further 
remark,  of  a  deed  offered,  is  a  failure  to 
comply  with  the  terms  of  purchase.  An 
ejectment  lies  at  once,  without  demand  or 
notice,  even  though  the  vendor  may  not 
have  discharged  merely  formal  i^arts  of 


his  duty — sucli  want  of  formality  liaving 
been  waived  by  the  vendee — and  tliough 
the  vendee  may  have  made  valuable  im- 
provements. Gregg  V.  Von  Pluil,  1  Wall. 
274. 

To  ejectment  for  lands  in  possession  of 
tlie  defendant  under  an  executory  sale, 
brought  by  a  grantee  of  the  vendor,  for 
default  in  payment  of  an  instalment  at 
the  time  fixed  ;  the  defendant  may  inter- 
pose an  equitable  defence  with  tlie  same 
effect  as  if  he  had  commenced  a  cross 
action  and  applied  for  an  injunction.  The 
decision  of  such  a  question  consists  of  a 
single  conclusion  of  law,  and  a  general 
exception  is  sufficient.  Cytlie  v.  La  Fon- 
tain,  51  Barb.  186. 

A  mere  equitable  title  to  land,  if  it  is 
of  such  a  ciiaracter  as  entitles  the  holder 
to  the  possession  in  equity,  is  a  sufficient 
defence  under  the  system  of  practice  in 
California,  to  an  action  for  the  possession 
brought  even  by  the  holder  of  the  legal 
title.  In  ejectment  against  a  purchaser 
in  possession,  under  a  title-bond  for  a 
deed  upon  payment  of  the  purchase- 
money  ;  non-payment  does  not  affect  the 
right  of  possession,  in  favor  of  a  subse- 
quent purchaser  with  notice.  Willis  v. 
Wozencraft,  22  Cal.  607.  A  judgment 
in  favor  of  the  plaintiff  in  ejectment  does 
not  estop  the  defendant  from  bringing  a 
bill  in  equity  to  compel  specific  perform- 
ance of  a  contract  to  convey,  which 
was  set  up  as  an  equitable  defence  to  the 
ejectment,  but  withdrawn  before  judg- 
ment, and  so  not  passed  upon.  Hough  v. 
Waters,  30  Cal.  309. 

In  Illinois,  and  under  its  statutes  relat- 
ing to  ejectment,  when  fraud  in  obtaining 
a  title  has  been  submitted,  in  ejectment, 
to  a  jury,  and  negatived  ;  the  party  cannot 
ask  relief  in  equity,  setting  up  essentially 
the  same  frauds,  and  sustaining  them  by 
the  same  evidence.  Blanchard  v.  Brown, 
3  Wall.  245. 

A  stipulation  in  writing,  by  the  attor- 
neys of  tlie  parties  in  ejectment,  that  the 
defendant  consents  to  a  reference,  and 
that  the  plaintiff  will  within  five  days 
execute  to  him  a  deed  of  a  part  of  the 
land,  gives  the  defendant  an  equitable  title, 
although  judgment  is  rendered  for  the 
plaintiff".  Such  title,  and  actual  posses- 
sion claiming  title,  is  sufficient  notice  to 
put  a  purchaser  from  the  plaintiff  on 
inquiry.     Killey  v.  Wilson,  33  Cal.  690. 


BOOK   II.] 


TITLE — PATENT,    DEED,    <fec. 


167 


consider  the  nature,  fovni,  and  effect  of  transfers  of  real  estate, 
which  is  of  itself  a  most  important  and  copious  subject.  The 
topic  is  here  considered,  only  under  the  precise  limitation  above 
referred  to.  (a) 


(«)  See  Reformeil  i".  Schoolcraft,  5 
Laiis.  li(K). 

Ejoctincnt  may  be  niaiiitaiiKMl  uiion  <i 
fofiiicr  jiidi/mrrit  for  the  land.  Stevens 
V.  liuirlics,  31  Penn.  381  ;  Peteniian  v. 
Hulinii,  ih.  432. 

Or  upon  a  tax  title.  Townsend  r.  Dow- 
ner, 32  Vt.  183.     See  p.  ItJl. 

And,  on  the  other  hand,  a  writ  of  entry 
will  lie  hy  the  former  owner  of  land  sold 
for  non-])ayment  of  taxes,  if  he  have 
tendered  the  ])ro])er  stun  to  the  jiurchaser 
Avithiu  two  years,  under  Mas.'^acliusetts 
Rev.  Sts.  c.  8,  §  32,  althougli  he  might 
also  have  a  bill  in  equity  to  compel  a  re- 
conveyance, under  St.  1H4'J,  c.  213.  Hand 
V.  Kohinson,  11  Cush.  289. 

In  reference  to  the  obsolete  assurance 
of  jiiic,  a  recent  case  in  New  York  decides, 
that  a  fine  has  no  validity,  unless  the  par- 
ties have  soiue  interest  in  the  land.  The 
person  who  levies  it  must  have  a  I'reehold 
by  rij^ht  or  by  disseisin  ;  and  the  disseisin 
need  not  he  by  violence  ;  but  wiiere,  from 
the  circumstances  of  the  case,  there  can  be 
no  violence,  the  law  will  infer  a  disseisin 
from  such  other  acts  as  sliow  tliat  tlie 
possession  is  adverse  and  hostile  to  that  of 
the  true  owner.  M'Gregor  i'.  Comstock, 
16  Barb.  427. 

A  party  may  claim  \m(]er  an  ancient  vote 
of  jnojin'clors.  An  ancient  vote  of  propri- 
etors, granting  common  lands,  is  juiina 
fdciK  evidence  of  title  and  seisin.  If  the 
demandants  claim  title  under  such  vote, 
passed  in  1732,  granting  all  the  common 
land  between  two  designate<l  houses ; 
proof  of  the  position  of  the  houses,  and 
that,  at  the  earliest  jjcriod  within  the 
memory  of  living  witnesses,  there  was  a 
lot  between  them  lying  open  and  in  com- 
mon, authorizes  a  jury  to  find  that  it  is 
the  lot  granted.  Gloucester  v.  (iaffhey,  8 
Allen,  11. 

The  i)laintifl"  must  sliow  title  from  the 
State,  or  else  actual  possession,  either  by 
himself  or  by  some  person  under  whom 
he  claims.  Graves  v.  Amoskeag,  44  N.  11. 
462. 

In  this  country  a  deed,  a  descent,  or  a 
grant  by  letters-patent  from  the  govern- 
ment, carries  tlie  legal  seisin,  and  gives 
constructive  possession.  Whitehead  r. 
Foley,  28  Tex.  2G8. 

A  party  may  rely  u])on  a  jmhlic  i/nnit  or 
patent.  See  (iratz  r.  Beates,  45  I'enn. 
495;   Franklin,   &c.   i--.  Hall,  16  B.  Mon. 


472 ;    Schoenberger   v.   Baker,  22  Penn. 
398  ;  Manny  r.  Smith,  10  Wis.  509. 

Title  to  lands  from  the  State  draws  the 
.seisin  or  ac'tiial  legal  possession  to  it;  so 
that  a  ])arty  is,  by  force  of  his  title,  in  po.s- 
session,  until  an  ouster  or  disseisin  by  some 
one  entering  with  an  adverse  claim. 
Iloye  V.  Swan,  5  Md.  23; . 

Kjectment  may  be  brought  for  lands 
under  water,  granted  by  the  State,  for  a 
certain  specific  use  which  requires  actual 
occupation.  Champlain  v.  Valentine,  19 
Barb.  484. 

Where  the  plaintiff  relies  on  a  prior 
possession  of  public  lands,  the  defentlant 
cannot  show  an  anterior  jjossession  in  a 
stranger.     Piercy  v.  Sabin,  10  Cal.  22. 

Under  the  Miss.  Statute  of  1822  ( Hutch. 
Dig.  8'8),  a  certificate  issueil  in  jjursuance 
of  an  act  of  Congress,  by  any  legally  au- 
thorized officer,  for  the  purchase  or  entry 
of  lands  belonging  to  the  United  States, 
is  sufficient  evidence  of  title  to  supjiort 
an  action  of  ejectment.  But  only  when 
regularly  issued  and  remaining  in  full 
force  and  uncancelled.  Davis  v.  Freeland, 
32  Miss.  645. 

In  California,  a  mere  survey  and  mark- 
ing boundaries  is  not  possession  sufficient 
to  maintain  ejectment,  indess  made  so  l)y 
complying  with  the  Statute  of  April  20, 
1852.  '  Bird  v.  Dennison,  7  Cal.  297.  The 
certificates  of  location  and  jjurchase  of 
lands  issued  under  the  laws  of  California 
are  jirimd  facie  evidence  of  title.  Kichter 
V.  Kiley,  22  Cal.  639.  When  the  plaintiff 
claims  under  a  title  from  the  United 
States,  and  the  defendant  under  a  i)atent 
from  the  State,  as  swamp  and  overflowed 
land,  ceiled  by  the  Uniteil  States  :  the 
former  ma}'  introduce  oral  testimony  that 
such  land  is  not  swamp  and  overflowed. 
Thornton  v.  Thompson,  28  Cal.  602.  In 
ejectment  against  a  jjre-emption  clainumt 
by  a  i)ateiitee  from  the  State,  as  of  swamp 
and  overflowed  lands,  the  plat  of  the  sur- 
vey of  the  township  is  admissible  in  evi- 
dence, for  the  pur))ose  of  showing  the 
lines  of  the  subdivisions,  including  the 
land,  but  not  for  the  purpose  of  ])roving, 
b\'  the  surveyor's  descriptive  notes  found 
on  the  plat,  that  those  subdivisions  are 
swamp  and  overflowed.  Kobinson  r.  For- 
rest, 29  Cal.  317.  When  the  i)laintiff 
proves  his  title  by  a  patent  of  the  i)remises 
as  "  swamp  and  overflowed,"  the  defend- 
ant cannot  show  that  they  are  dry  and  tit 


158 


DISSEISIN,   EJECTMENT,   REAL   ACTION.  [BOOK   II. 


34.  The  most  frequent  claim  of  title  is  by  deed  of  convey- 


for  cultivation,  if  he  has  not  broiiglit  or 
ottered  to  bring  liimself  into  relations 
with  tlie  State  or  the  United  States.  Car- 
der r.  Baxter,  28  Cal.  99. 

If  one  be  in  possession  of  lands,  with 
known  and  visible  boundi'.ries,  and,  before 
possession  has  continued  long  enough  to 
raise  the  presumption  of  a  grant,  another 
procure  a  patent  for  such  lands,  or  a  part 
thereof;  from  that  time  the  time  of  pre- 
sumption ceases  to  run.  Where  two 
grants  lap,  so  that  both  cover  in  part  the 
same  land,  the  possession  of  the  lappnge 
is  in  law  to  him  who  has  the  better  title, 
unless  there  be,  by  the  party  claiming 
under  the  other,  an  actual  possession,  or 
possessio  pedis,  thereon.  Brown  v.  Potter, 
Busb.  461. 

If  two  grants  lap,  and  one  only  of  the 
claimants  be  seated  on  the  lapped  part,  the 
possession  of  the  whole  interference  is  in 
him  ;  possession  of  a  part  of  the  land  in- 
cluded in  both  deeds  being  possession  of 
the  whole.  McCormick  v.  Munroe,  3 
Jones,    332. 

If  a  patent  was  obtained  under  such 
circumstances  as  would  make  the  grantee 
in  it  a  trustee  ;  such  circumstances  must 
be  set  up  in  the  answer  to  an  action  for 
possession,  with  the  same  particularity 
that  would  be  necessary  to  a  bill  in  chan- 
cery.    Carman  v.  Johnson,  20  Mis.  108. 

A  person  claiming  title  to  a  lot  in  San 
Francisco,  under  an  alcalde's  grant,  made 
in  1847,  cannot  maintain  a  possessory  ac- 
tion, or  an  action  of  ejectment,  against  one 
in  the  actual  possession,  when  it  only  ap- 
pears that  the  alcalde's  grantee  went  upon 
the  lot  in  1848,  drove  some  stakes,  and 
cleared  away  some  brush  for  the  purpose 
of  erecting  a  dwelling-house.  Woodworth 
V.  Fulton,  1  Cal.  2ii5. 

It  is  held  in  the  United  States  Court, 
that  the  plaintiflF  in  ejectment  must  in  all 
cases  prove  a  legal  title  at  the  time  of  the 
demise  laid  in  tlie  declaration,  and  not  a 
mere  equitable  estate  ;  and  the  practice,  in 
some  States,  of  permitting  ejectment  to 
be  maintained  upon  warrants  for  land,  and 
upon  titles  not  complete  or  legal  in  their 
character,  can  in  nowise  affect  the  juris- 
diction of  courts  of  the  United  States. 
Thus  tlie  holder  of  a  new  Madrid  certifi- 
cate, u])on  which  no  patent  had  issued, 
cannot  recover  in  ejectment,  the  legal  title 
being  in  the  general  government.  Fenn 
V.  Holme,  21  How.  481.  Where  tlie 
plaintiffs  in  an  action  of  ejectment  of- 
fered, in  support  of  their  title,  two  patents 
of  tracts  of  land,  called  "  Black  Walnut 
Thicket,"  and  "  Content,"  and  also  a  deed 
of  two  tracts  of  the  same  names  (the  metes 
and  bounds  describing  the  tracts  in  the 


deed  not  being  identical  with  those  of 
either  patent),  and  proved  possession  by 
their  ancestor  of  the  land  described  in  the 
deed,  there  being  no  evidence  of  any  ad- 
verse claim  ;  the  jury  were  warranted  in 
finding  that  the  land  described  in  tlie  deed 
was  the  same  as  that  granted  by  the 
patents.     Carroll  v.  Carroll,  16  How.  275. 

In  general,  the  plaintiff  must  show  title 
from  the  State,  or  possession  of  himself 
or  the  person  under  whom  he  claims. 
Graves  v.  Amoskeag,  &c.,  44  N.  H.  462. 

The  right  of  possession,  as  against  an 
intruder,  is  conclusively  established  by 
evidence  of  a  patent  and  a  conveyance 
under  it  to  the  plaintiff.  Hull  v.  Camp- 
bell, 56  Penn.  154. 

In  ejectment,  the  plaintiff  offered  the 
record  of  a  patent  from  the  United  States 
to  his  grantor,  and  a  deed  from  him  to 
the  plaintiff  bearing  date  in  1858,  purport- 
ing to  be  for  the  purpose  of  correcting  and 
supplying  a  defect  of  title,  occasioned  by 
the  want  of  witnesses  to  a  power  of  attor- 
ney from  the  grantor  made  in  1836,  in 
pursuance  of  which  power,  and  deeds 
executed  thereunder,  the  plaintiff  first 
went  into  possession.  The  plaintiff  then 
offered  in  evidence  the  record  of  the  power 
of  attorney.  Held,  the  evidence  of  the 
power  of  attorney  was  unnecessary,  and, 
as  it  in  no  way  prejudiced  the  defendant, 
was  not  an  error  of  which  he  could  com- 
plain.    Wright  V.  Wilson,  17  Mich.  192. 

Where  one  party  claims  under  a  pa- 
tent, the  other  may  show  that  the  patent 
is  void,  because  the  patentee  was  dead  at 
the  time  it  was  issued.  Blankenpickler 
V.  Anderson's  Hrs.,  16  Gratt.  59. 

In  ejectment,  where  a  portion  of  the 
land,  affirmed  by  the  board  of  property  to 
be  the  property  of  the  plaintitt''s  ancestor, 
a  settler  upon  it,  was  subsequently,  on 
application  of  the  defendant's  ancestor, 
survej'ed  and  patented  ;  such  survey  and 
patent  are  admissible  on  behalf  of  the 
defendant.  O'Hara  v.  Richardson,  46 
Penn.  385. 

An  official  survey,  the  certificate  where- 
of is  recorded  within  thirty  days  after  its 
delivery,  operates  for  one  year  like  an 
actual  and  continuous  possession,  under 
the  Act  of  1861  regulating  surveyors  and 
surveying.    Desmond  v.  Stone,  1  Nev.  378. 

Under  the  Code  of  Virginia  (c.  135, 
§  2),  ejectment  lies  against  persons  who 
have  made  entries  and  surveys  of  any 
part  of  the  land,  and  are  setting  up  claims 
to  it,  though  not  in  occupation  at  the 
time  suit  is  brought.  Harvey  v.  Tyler,  2 
Wall.  328. 

A  person  who  merely  staked  off  land, 
and  a  year  thereafter  recorded  a  notice  of 


BOOK   II.] 


TITLE — PATENT,   DEED,    &C. 


159 


ance.  (a)     An  ordinary  quitclaim  deed  will  maintain  ejectment, 


his  claim  thereto,  is  not  entitled  to  posses- 
sion as  against  one  wlio  subsequently 
located,  improved,  and  occupied  ;  and 
ejectment  will  lie  against  him.  Sankey 
V.  Noyes,  1  Nev.  08. 

At  common  law,  and  under  the  Cali- 
fornia mode  of  jjroccdure,  in  case  of  con- 
flicting i)a  tents  from  one  paramount 
source,  the  court  will  look  behind  tlie 
patents,  and  ascertain  which  party  had 
the  prior  equity  ;  and,  when  ascertained, 
it  will  attach  itself  to  the  legal  title, 
which,  by  relation,  takes  cflect  at  the 
time  tlie  equity  accrued  ;  and  tlius  a  jun- 
ior patent,  founded  on  a  prior  equity,  will 
prevail  over  an  elder  jjatent  founded  on 
a  junior  equitj'.  Thus  wliere,  in  March, 
185(5,  the  U.  S.  register  issued  to  V.  the 
proper  certificate  of  ajjproval  of  liis  prof- 
fered location  of  certain  California  school 
land  warrants,  as  a  part  of  the  land 
granted  to  tlie  State  by  the  Act  of  Con- 
gress of  1841,  and  in  1802  the  State  issued 
to  A.,  as  V.'s  assignee,  a  patent  thereto, 
and  S.,  in  April,  1850,  filed  in  the  proper 
United  States  land -office  a  declaratory 
statement  for  a  pre-emption  of  the  same 
land,  and  in  1863  received  a  United  States 
patent  thereto  as  a  pre-emptor  ;  held,  A.'s 
title  was  the  older,  and  must  prevail. 
Smith  V.  Atiiern,  34  Cal.  oOlJ.  Mere  prior 
possession  does  not  maintain  an  action 
against  a  right  of  possession  under  the 
U.  S.  pre-emption  laws.  Kile  v.  Tubbs, 
28  Cal.  402. 

In  Maryland,  where  the  whole  of  a 
tract  is  located  on  the  plats,  a  deed  con- 
veying the  whole  may  be  given  in  evi- 
dence, though  not  itself  located.  So  two 
deeds,  one  for  a  specific  portion  and  the 
otlier  for  the  residue  of  the  same  tract, 
■when  tlie  patent  has  been  located,  witli- 
out  being  otlierwise  located.  When  a 
party  in  ejectment  takes  defence  on  war- 
rant, ami  tlie  plaintifl"  has  located  liis 
pretensions,  such  location  is  admitted, 
unless  the  defendant  counter-locates.  If 
the  counter -location  covers  the  same 
ground  as  the  locations  of  the  plaintilf,  it 
is  equally  an  admission  of  tlie  correctness 
of  the  latter.  Where  the  same  title-paper 
is  located  by  botli  parties  in  ejectment  in 
the  same  manner,  covering  tlie  same 
ground,  tlie  location  is  binding  upon  both. 
Langley's  Le.  v.  Jones,  26  Md.  462. 

No  title  vested  in  the  claimants  of  land 
under  the  incomplete  Spanish  concessions, 
until  after  the  confirmation  thereof  by 
Congress.  Such  confirmation  bestowed 
no  title  to  any  distinct  parcel  of  land,  sev- 
ered from  the  public  domain,  unless  refer- 
ence was  clearly  had  to  a  certainly  defined 


location,  described  by  boundaries  in  the 
claimant's  jietition.  The  Acts  of  Con- 
gress confirming  the  concession,  and  of 
the  executive  officers  making  a  survey 
and  jilat  of  tlie  land,  did  not  vest  a  title 
in  the  claimant,  if  the  commissioner  of 
the  general  land  office  had  refused  a  pat- 
ent.    Minis  V.  Iliggins,  3H  Ala.  'J. 

A  grant,  from  the  State,  of  public  do- 
main cannot  be  presumed  from  a  contin- 
uous, uninterrupted  possession  for  ten 
years,  or  holding,  under  a  deed  duly 
registered,  peaceable,  quiet,  actual  adverse 
possession,  using,  cultivating,  and  enjoy- 
ing the  land,  and  paying  taxes  for  five 
years.  Walker  v.  Hanks,  27  Tex.  535. 
In  an  action  of  trespass  to  try  title,  the 
plaintift'introduced  the  depositions  of  three 
aged  Mexican  witnesses,  wiio  testified, 
tliat  the  city  of  Matamoras,  from  tlie  year 
1830,  had  leased  out  portions  of  a  tract  of 
territory,  including  the  projierty  in  con- 
troversy, as  part  of  the  town  lands  ;  that 
any  one  who  chose  could  lease  from  the 
city  a  certain  amount  of  land  ;  that  no 
person  could  lease  more  than  one  allot- 
ment, but  the  lessee  had  the  right,  with 
the  assent  of  the  city,  to  transfer  his 
lease.  None  of  the  witnesses  knew  how 
long,  previously  to  1830,  tlie  city  had 
leased  the  lands,  nor  the  origin  of  the 
claim  or  possession  of  the  city.  Held,  the 
evidence  did  not  authorize  a  presump- 
tion of  a  grant  by  the  State  to  the  city, 
or  that  the  title  of  the  former  owners  had 
been  divested  and  acquired  by  the  city. 
Biencourt  v.  Parker,  27  Tex.  558. 

The  plaintiff  in  ejectment,  pending  pro- 
ceedings to  obtain  a  patent  confirming  a 
Mexican  grant,  conveyed  the  ])remises, 
taking  a  mortgage,  and  subsequently 
commenced  an  action  to  foreclose,  and, 
before  decree,  assigned  the  mortgage. 
The  plaintiff'  obtained  the  patent,  and  at 
a  sale  under  the  foreclosure  bid  them  off", 
and  received  a  sheritt"s  deed.  Held,  the 
title  was  thus  revested  in  him,  and  that 
the  equitable  rights  of  the  assignee  af- 
forded defendants  no  ground  for  impeach- 
ing the  deed.  Pioche  v.  Paul,  22  Cal. 
105. 

A  tribe  of  Indians,  not  showing  title  to 
land,  cannot  question  a  sale  made  by  the 
State  to  a  grantor  of  the  deteiulants'  an- 
cestor more  than  thirty  j-ears  before  suit, 
during  which  time  the  defendants  and 
those  under  whom  they  claim  have  had 
possession  and  claimed  title.  Penobscot, 
&c.  V.  Veasie,  68  Maine,  402. 

(a)  A  deed  may  be  conditional,  as  well 
as  absolute.  A  grantee,  who  has  per- 
formed for  a  time  an  agreement  to  sup- 


IGO 


DISSEISIN,    EJECTMENT,    REAL   ACTION, 


[book  II. 


if  the  grantor  could  have  done  so.^     So  where  a  person,  having 
a  quitclaim  deed  from  one  who  held  by  deed   of  warranty,  made 

1  Sulliviin  V.  Davis,  4  Cal.  291 ;  Downer  v.  Smith,  24  ib.  123. 


port  the  uraiitor,  and  who  is  ready  to 
continue  such  ])erf'()rniance,  may  maintain 
ejectment  agaiu.st  tlie  grnntor.  Spalding 
V.  Hallenbeck,  oO  Barb.  2'.)2. 

Wliere  tlie  action  is  founded  upon 
brcacli  of  a  condition  subsequent  in  a 
deed  from  plaintiff  to  defendant  ;  the 
former  maj'^  prove  an  alteration  in  the 
deed,  though  produced  by  the  defendant 
upon  notice,  llives  v.  Thompson,  41  Geo. 
68. 

Questions  also  arise  in  connection  with 
deeds  of  niorl(ia(/e.  See  Koons  v.  Steele, 
19  Penn.  203 ;  Chapman  v.  Delaware,  3 
Lans.  261. 

A  purchaser  under  the  foreclosure  of  a 
mortgage,  made  by  the  party  disseised, 
has,  and  can  assert,  precisely  his  rights. 
Clute  V.  Voris,  31  Barb.  511. 

A  conditional  judgment  in  a  writ  of 
entry  on  a  mortgage,  followed  by  fifty 
years'  quiet  and  peaceable  possession  by 
the  mortgagee,  is  sufficient  evidence  of  an 
absolute  title,  without  proof  that  possession 
was  ever  delivered  to  him  under  such 
judgment  by  legal  process.  Creighton  v. 
Proctor,  12  Cus'h.  433. 

In  ejectment  to  try  title,  where  a  mort- 
gage has  been  paid  under  a  mistake,  the 
defendants,  whose  only  equity  grows  out 
of  this  mistake,  cannot  have  a  conditional 
verdict  found  for  the  plaintiffs,  requiring 
them  to  pay  tiie  mortgage  before  they 
can  gain  possession.  The  verdict  should 
be  for  the  plaintiffs,  unconditionally.  If 
the  mistake  had  never  been  made,  tlie 
mortgage  would  be  no  protection  to  the 
defendants.  Peters  v.  Florence,  38  Penn. 
194. 

An  old  mortgage,  without  possession, 
is  held  no  defence  in  ejectment.  Moreau 
V.  Detchemendy,  18  Mis.  522. 

A  mortgage  is  a  good  defence  without 
disclaimer  of  an  absolute  title.  Hoxie  v. 
Finney,  11  Gray,  511.  See  Sheridan  v. 
Welch,  8  Allen,  16i'.  A  writ  of  entry 
will  not  lie  in  favor  of  a  second  mortgagee 
against  a  tenant  of  a  prior  mortgagee,  who 
has  taken  possession  for  condition  broken. 
Batcheller  v.  Pratt,  10  Gush.  185. 

A  demandant  is  not  precluded  from 
maintaining  his  writ,  by  having  mortgaged 
the  land  pending  the  action.  Woodman 
V.  Smith,  37  Maine,  21. 

A  title  acquired  by  the  tenant,  without 
the  concurrence  of  the  demandant,  after 
the  commencement  of  a  real  action,  al- 
though pleaded  at  the  first  term  after  it  is 
acquired,  will  not  bar  the  defendant,  —  es- 


pecially when  it  is  merely  a  title  under  a 
mortgage,  — even  if  the  tenant  has  given 
the  demandant  notice  that  he  is  in  posses- 
sion for  tlie  purpose  of  foreclosure.  Curtis 
V.  Francis,  9  Gush.  427.  An  adverse 
and  exclusive  occupation  of  mortgaged 
premises  by  a  stranger  will  disseise  both 
mortgagor  and  mortgagee.  Dadmuu  v. 
Lamson,  9  Allen,  85. 

The  possession  of  the  mortgagor  for 
twenty  years,  until  shown  to  be  adverse, 
preserves  the  seisin  of  the  mortgagee,  so 
that  his  right  of  entry  is  not  barred. 
Sheafe  v.  Gerry,  18  N.  H.  245. 

Exclusive  possession  of  a  mortgagor, 
with  a  claim  of  exclusive  ownership,  does 
not  in  itself  invalidate  a  transfer  of  the 
mortgage-title,  or  prevent  the  valid  execu- 
tion of  a  power  of  sale.  Sheridan  v. 
Welch,  8  Allen,  166. 

A  mortgagee  and  his  assigns  may  main- 
tain a  writ  of  entry  for  possession  against 
any  one  in  actual  occupation.  Marsh  v. 
Smith,  18  N.  11.  366. 

Although  a  statute  declares,  that,  in 
case  of  non-payment  of  a  mortgage  to 
loan  commissioners,  when  demanded, 
they  shall  be  seised  of  an  absolute, 
indefeasible  estate  in  the  lands,  &c.,  they 
cannot  maintain  ejectment.  York  v. 
Allen,  30  N.  Y.  104. 

An  assignee  of  a  mortgage  cannot  re- 
cover in  ejectment,  where  he  claims  to  be 
the  owner  in  fee-simple.  Speer  v.  Had- 
duck,  31  111.  439. 

A  party  claiming,  by  the  assignment  of 
the  legal  title  as  security,  holds  in  the 
character  of  mortgagee,  and  cannot  main- 
tain ejectment  (2  Eev.  Sts.  c.  312,  §  57). 
Murray  v.  Walker,  31  N.  Y.  399. 

A  mortgagee  of  copyhold,  who  has  not 
been  admitted  by  the  lord  of  the  manor, 
cannot  maintain  ejectment  against  the 
tenant  of  the  mortgagor,  unless  the  I'ela- 
tion  of  landlord  and  tenant  be  established 
aliunde.  Eayson  v.  Adcock,  12  C.  B. 
(N.  S.)  867. 

A  mortgagee  may  maintain  ejectment 
upon  the  title  acquired  by  a  purchase  at 
his  own  sale,  until  set  aside.  Hawkins  v. 
Hudson,  45  Ala.  482. 

The  plaintiff,  claiming  by  a  sale  from  a 
mortgagee  inider  a  power  of  sale,  may 
recover  from  one  who  claims  under  a 
deed  from  the  mortgagor,  subsequent  to 
the  mortgage.  Lydston  v.  Powell,  101 
Mass.  77. 

In  New  York,  an  absolute  grantee,  but 
under  an  arrangement  to  recovery  upon 


BOOK   II.] 


TITLE  —  PATENT,   DEED,    &C. 


161 


entry,  and  then  conveyed  to  the  demandant;  hold,  the  latter  had 
such  seisin  as  would  maintain  a  writ  of  entry  against  a  wrong- 


repayment  of  tlie  sum  advanced  witliin  a 
certain  time,  is  not  strictly  a  mortfja^ee, 
and  may  maintain  ejectment.  Fiedler  v. 
Darvin,  5'J  Barb.  tj;')!. 

It  is  held  that  a  mortgagor  cannot  main- 
tain ejectment  against  a  mortgagee  in  pos- 
session. Connor  v.  Whitmore,  52  Maine, 
185. 

A  mortgagee  in  possession,  after  the 
condition  is  broken,  may  defend  against 
the  mortgagor  or  any  person  claiming 
under  him,  so  long  as  the  debt  remains. 
Hubble  V.  Vaughn,  42  Mis.  138 ;  Holt  v. 
Kees,  44  111.  30. 

The  mortgagor,  or  person  claiming 
under  him,  cannot  maintain  a  writ  of 
entry  against  the  assignee  of  an  undis- 
charged mortgage,  paid  after  breach  of  con- 
dition.   Dyer  v.  Toothaker,  51  Maine,  3b0. 

A  mortgage  was  executed,  to  secure  a 
bond  given  to  a  guardian  of  infants,  with 
condition  to  clothe,  educate,  and  maintain 
them  for  a  term  of  j'ears.  In  ejectment 
by  tlie  mortgagor,  an  answer,  that,  after 
tlie  conditions  were  broken,  the  detendant 
peaceably  went  into  and  retained  posses- 
sion luuler  the  direction  of  the  mortgagee, 
was  held  sufHcient.  Hennesy  v.  Farreli, 
20  Wis.  42. 

An  owner  in  fee,  prior  to  mortgaging 
it  for  a  term  of  years,  put  A  into  posses- 
sion. A  occupied  for  twenty-five  years, 
without  payment  of  rent,  or  written  ac- 
knowledgment of  the  mortgagor's  title. 

A.  then  conveyed  in  fee  to  the  plaintiff", 
and.  after  attorning  to  him  as  his  tenant, 
gave  up  possession  for  a  sum  of  money  to 

B,  the  representative  of  the  mortgagor, 
and  C,  the  executor  of  the  mortgagee 
(whose  mortgage  had  been  kept  alive  by 
payment  of  interest).  B  and  C  after- 
wards joined  in  a  conveyance  of  the 
premises  to  the  defendants.  Held,  in  an 
action  of  ejectment,  tlie  defendants  were 
not  estopped  from  setting  up  their  title  to 
the  premises,  and  that  tliey  were  persons 
claiming  under  a  mortgage  witliin  the 
meaning  of  the  7  Wm.  IV.  &1  Vict.  c.  28, 
and  consequently  that  the  3  &4  Wm.  IV. 
c.  27,  did  not  operate  to  bar  their  title. 
Ford  I'.  Ager,  2  Hurl.  &  Colt.  279. 

An  answer  to  a  petition  in  ejectment 
by  the  grantee  against  the  grantor  in  a 
deed  absolute  upon  its  face,  setting  forth 
only  that  the  deed  was  intended  as  a 
mortgage,  and  not  asking  to  reform  the 
deed,  or  to  redeem  the  land,  shows  no  de- 
fence in  equity.  Sutton  v.  Mason,  38  Mis. 
120.  In  ejectment,  a  mortgage,  more  than 
thirty  years  old,  without  proof  of  posses- 
sion under  it,  or  of  the  present  existence 


of  the  debt,  is  no  defence  as  an  outstand- 
ing title.  Moreau  v.  Detchemendy,  41 
Mis.  432. 

A  judgment  in  ejectment,  for  the  as- 
signee of  a  lessor,  against  the  assignee  of 
the  lessee,  for  non-payment  of  rent  on  a 
lease  containing  a  covenant  of  re-entry, 
is  a  bar  to  an  action  by  a  party  claim- 
ing through  a  purciiaser  at  a  foreclosure 
sale,  under  a  mortgage  executed  by  the 
lessee's  assignee  after  the  date  of  the  lease, 
but  before  commencement  of  the  eject- 
ment. The  plaintiff's  title  through  the 
defendant  in  ejectment  having  been  per- 
fected by  proceedings  in  foreclosure  after 
the  ejectment  was  conmienced,  the  judg- 
ment in  the  latter  suit  is  conclusive  against 
the  plaintiff.  Bennett  v.  Coucliman,  43 
Barb.  73. 

Before  a  party  can  avail  himself  of  pro- 
ceedings in  bcinkriiptci/  by  which  title  to 
land  is  claimed,  he  must  produce  the  de- 
cree of  bankrujitcy ;  a  deed  from  the 
assignee  is  not  sufficient.  Fash  v.  Blake, 
38  111.  363. 

Where  one  who  can  show  a  record  title, 
and  is  in  possession,  files  a  bill  to  quiet 
his  title  against  a  party  claiming  under  a 
tax  sale  ;  a  presumjitive  case  is  prima  facie 
sufficient.  Hall  v.  Kellogg,  IG  Mich."  135. 
See  p.  157,  n. 

The  defendants,  in  ejectment  on  a  tax 
title,  may  show  that  the  lot  assessed  to 
them  included  a  tract  to  which  they  had 
no  title  or  claim.  Tustin  v.  Faught,  23 
Cal.  237. 

So,  that  the  land  was  not  assessed  in  the 
name  of  the  real  owner  or  of  any  former 
owner,  or  of  any  tenant  or  occupant,  or 
that  tlie  judgment  against  the  land  was 
rendered  without  notice  to  the  owner. 
Abbott  V.  Lindenbower,  42  Mis.  162. 

When  a  complaint  in  ejectment  makes 
no  mention  of  tax  deeds,  as  the  founda- 
tion of  title,  which  are  afterwards  offered 
in  evidence  ;  the  defendants,  under  the 
general  denial,  may  introduce  any  evi- 
dence allowed  by  statute,  to  show  the 
invalidity  of  the  deeds,  or  the  title  ac- 
quired under  them.  Roberts  v.  Chan  Tin 
Pen,  23  Cal.  251). 

In  an  action  of  ejectment  brought  by 
a  pur(ihaser  at  a  tax  sale,  the  jKirty  in 
possession  may  avail  himself  of  the  Stat- 
ute of  Limitations,  even  where  the  sale 
has  been  confirmed  by  decree,  and  when 
it  becomes  necessary,  in  order  to  make 
out  the  limitation,  to  embrace  time  subse- 
quent to  the  sale  and  prior  to  its  confirma- 
tion.  Buckingham  v.  Hallett,  24  Ark.  519. 


11 


162 


DISSEISIN,   EJECTMENT,   REAL   ACTION. 


[book   II. 


doer.i  (a)  And  one  who  enters  under  a  deed  with  warranty,  pur- 
porting to  convey  the  fee,  is  presumed  to  enter  claiming  according 
to  such  title,  and  may  maintain  a  writ  of  entry,  though  his  prede- 
cessors had  an  estate  less  than  a  freehold.^ 

§  35.  A  deed  gives  color  of  title. ^  It  is  held  to  be  admissible  in 
evidence,  though  not  recorded.  Notice,  which  is  equivalent  to 
recording,  may  be  subsequently  proved."* 

§  36.  If  a  grantee  in  an  absolute  deed  leave  his  grantor  in  pos- 
session, the  latter  becomes  his  quasi  tenant,  and  may  be  joined  in 
an  action  of  ejectment  against  liim.'^  (5) 

§  37.  But  a  recorded  deed  does  not  disseise  the  owner,  unless 
the  grantor  occupy  some  part  of  the  premises.^  So,  in  ejectment, 
a  deed  from  one,  who  is  not  shown  to  have  had  any  interest  in 
the  land,  is  inadmissible  in  evidence.''  And  a  mere  entry  upon 
land,  under  a  deed  defectively  executed,  not  followed  by  any  acts 
of  ownership  or  continued  possession,  will  not  sustain  a  writ  of 
entry  ."^ 


1  Edmunds  v.  Griffin,  41  N.  H.  529. 
'i  Melcher  v.  Flanders,  40  N.  H.  139. 
^  Dickenson  v.  Breeden,  30  111.  279. 
4  Ross  V.  Hole,  27  111.  104.     See  Hill  v. 
Kricke,  11  Wis.  442. 


6  Patch  V.  Keeler,  1  Williams,  252. 

6  Putnam  v.  Fisher,  38  Maine,  324. 

7  Shrack  v.  Zubler,  34  Penn.  38. 

8  Nichols  V.  Todd,  2  Gray,  568. 


A  plaintiff  in  ejectment  claimed  title 
under  a  deed,  executed  many  years  before 
to  himself  and  other  parties  who  were 
deceased,  as  "  trustees  of  the  Carlinville 
School  Union,  for  the  use  of  the  inhabi- 
tants of  C.  and  vicinity."  Thirty-five 
years  before,  the  land  had  a  log  school- 
house  upon  it,  and  was  then  known  as  the 
"  school  lot."  Held,  that  this  was  not  suf- 
ficient to  prove  that  the  land  was  school 
property,  and  therefore  not  taxable,  so  as 
to  take  tlie  case  out  of  tlie  Statute  of  Lira- 
tations,  as  against  a  defendant  claiming 
under  color  of  title  and  pa3'ment  of  taxes. 
Lair  v.  Mayfield,  46  111.  500. 

In  Pennsylvania,  tiie  holder  of  a  tax 
title,  when  ])laintifr,  is  not  entitled,  under 
the  Act  of  1804,  to  recover,  after  five 
years,  without  showing  that  there  was  an 
assessment  by  some  competent  authority, 
that  tlie  taxes  were  due  over  a  year,  re- 
mained unpaid  when  the  sale  took  place, 
&c.  McPeynolds  v.  Longenberger,  57 
Penn.  13. 

H.  brought  ejectment  against  T.,  claim- 
ing under  a  tax  sale.  A  part  of  the  taxes 
had  been  illegally  assessed.  Under  the 
(IVIich.)  Act  of  March  20,  1865,  the  court 
rendei'ed  judgment  against  T.  for  the  full 
amount  of  the  taxes  for  which  the  land 


had  been  sold,  including  the  costs  of  adver- 
tisement and  sale  and  twenty-five  per 
cent  interest ;  and  at  the  same  time  ren- 
dered judgment  in  favor  of  T.  on  the 
main  issue.  Held,  erroneous.  Hart  v. 
Henderson,  17  Mich.  218. 

In  Arkansas,  in  ejectment  against  the 
holder  of  a  tax  title,  a  plea  in  abatement 
is  good,  that  the  land  had  been  held  for 
several  years  under  the  tax  sale  ;  that 
taxes  had  been  paid  and  improvements 
made  on  it ;  and  that  the  plaintiff  before 
bringing  suit  had  filed  no  affidavit  that  he 
had  tendered  the  purchasers  or  their  rep- 
resentatives the  full  amount  of  all  taxes 
and  costs,  and  the  statutory  interest 
thereon,  and  tlie  full  value  of  all  improve- 
ments, and  that  tlie  same  had  been  re- 
fused.    Pope  V.  Macon,  23  Ark.  644. 

(a)  A  plaintifl'cannot  prevail  when  none 
of  the  releasors  were  ever  in  possession, 
the  writ  alleging  the  defendant  to  be  in 
possession.  Tebbetts  v.  Estes,  52  Maine, 
566. 

(6)  In  California,  if  a  grantor  holds 
continuous  adverse  possession  for  five 
years,  he  can  set  up  the  Statute  of  Limita- 
tions in  defence  to  an  action  of  ejectment 
by  his  grantee.  Franklin  v.  Dorland,  28 
Cal.  175. 


BOOK   II.]  TITLE  —  PATENT,   DEED,    &C.  163 

§  38.  When  one  enters  upon  land,  under  a  deed  giving  definite 
and  certain  boundaries,  the  possession  of  any  part  is  a  possession 
of  the  whole,  though  the  deed  be  not  recorded.^  (a)  But  such 
possession  may  be  disproved. ^ 

§  38  a.  A  conveyed  to  B  a  tract  of  land,  excepting  tliorefrom 
the  land  within  its  boundaries,  which  was  included  in  the  highway. 
Held,  A  could  maintain  ejectment  against  B,  for  an  encroachment 
on  the  land  excepted.'^  And  a  party  cannot  recover  under  a  deed 
which  does  not  include  within  its  description  the  property  claimed, 
although  the  party  under  whom  he  claims,  holding  by  a  deed  with 
a  similar  description,  may  have  acquired  title  by  adverse  posses- 
sion or  otherwise.^  (6) 

§  39.  Where  the  defendants  show  no  title,  and  the  ])laintiff  is 
in  possession,  they  cannot  rely  on  the  invalidity  of  his  docu- 
mentary title.^  But  if  the  demandant  offer  no  evidence  of  title 
beyond  possession,  the  defendants  liiay  show  that  the  conveyances 
under  which  he  claimed  did  not  include  tiie  land  in  dispute, 
and  that  the  entry  made  by  his  grantor  was  not  under  claim  of 
title.6 

§  40.  A  plaintiff,  who  had  no  title  at  the  time  of  bringing  suit, 
cannot  recover  on  the  strength  of  a  deed  of  confirmation  made  to 
him  before  the  trial.'^  But  a  deed  of  land  from  A  to  B,  in  1822, 
the  consideration  money  being  paid,  the  grant  for  which  was  not 
issued  until  1831,  vests  a  title  sufficient  to  support  ejectment,  as 
against  a  subsequent  sheriff's   deed.^     And  if  the  party  has  a 

1  Spauldins  v.  Warren,  25  Vt.  310.  »  Bovreau  v.  Campbell,  1  McAll.  C.  C. 
See  Bainl  r.  Bell,  1  Duv.  384.  (Cal.)  iVj. 

2  Ganliior  r.  Gooch,  48  Maine,  487.  «  Edniumls  i'.  Griffin,  41  N.  H.  529. 

3  VA7.  V.  Daily,  20  Barb.  32.  "^  Slirack  >:  Znbler,  34  Penn.  38. 

4  Menkiiis  r.'Blunientlial,  19  Mis.  496.  8  Hand  v.  McKinney,  25  Geo.  (348. 

(a)  Where,  under  a  deed,  one  makes  the  east  side  of  S.  creek,  according  to  the 
the  first  entry,  and  j)art  of  the  land  is  un-  ancient  reputed  course  tliercof,"  and  the 
enclosed,  he  has  a  better  title  than  one  8.  creek  had  afterwards  oftLMi  i«()  over- 
claiming by  subsequent  entry  on  the  lui-  flowed  by  freshets  as  to  change  its  bed 
enclosed  i)art,  with  mere  color  of  title,  and  put  the  premises  on  its  west  side  ;  the 
Hicks  ('.  Coleman,  25  Cal.  130.  parties'  relative  claims  were  held  to  be  too 

(/;)   When  a  boundary  line  is  established  obscure  for  a  finding,   and    the    decision 

between  owners  by  long  aciiuiescence,  the  was  made  wholly  u])on  a  comjjarison  of 

line  attaches  itself  to  the  deeds  of  the  re-  tlieir  claims  arising  from  actual  posses- 

spective  ])arties.     Each  holds  his  whole  es-  sion.      Mitchell    v.    Baratta,     17    Gratt. 

tatemuler  liis  deed,  and  not  by  an  etpiitable  445. 

title  of  estop])el,  which  it  would  be  neces-  Equity  will  not  interfere  in  reference  to 

sary  to  plead  in  an  action  for  possession,  a  disputed  boundary,  where  the  legal  ac- 

Sneed  v.  Osborn,  2.')  Cal.  019.  tion  of  ejectment  might  be   maintained. 

Where,  in  one  of  the  title-deeds,  the  As  in  a  claim  for  land,  subject  to  an  ease- 
premises   were   described   as  lying   "  on  ment.     Tillmes  v.  Marsii,  G7  I'enn.  507. 


164  DISSEISIN,   EJECTMENT,   EEAL   ACTION.  [BOOK   11. 

deed  from  A,  and  also  one  from  B,  who  claimed  under  A,  it  is 
immaterial  whether  the  deed  from  A  to  B  be  good  or  bad.^ 

§  41.  Ejectment  does  not  lie  upon  a  grant  by  one  disseised ;  ^ 
nor  without  proof  of  title,  or  claim  of  title  and  possession,  in  the 
grantor.  But  possession  under  color  of  title  for  eight  or  ten 
years  is  sufficient.'^ 

§  42.  The  defendant  in  ejectment,  as  well  as  the  plaintiff,  may 
claim  under  a  deed  and  conformable  possession.^  A  legal  sub- 
sisting title,  outstanding  in  another,  defeats  the  plaintiff.  As,  for 
example,  a  deed  to  an  illegitimate  son  of  the  father  of  the  plain- 
tiff, delivered  by  putting  it  on  record  for  his  benefit,  although  the 
minor  die  before  coming  of  age.^  And,  on  the  other  hand,  the 
plaintiff  may  offer  in  evidence  a  deed  to  the  defendant,  to  explain 
the  latter's  possession.^  Or  prove  that  the  defendant,  at  the  time 
he  executed  a  deed  relied  on  by  the  plaintiff,  stated  that  the  land 
conveyed  was  the  same  as  that  on  which  the  defendant  lived,  there 
being  no  variance  between  the  deed  and  the  declaration  in  the 
writ." 

§  43.  Where  the  defendant  is  proved  to  be  in  possession,  and 
the  plaintiff  produces  registered  deeds  showing  an  apparent  chain 
of  title  from  the  lessor's  ancestor  to  the  defendant ;  it  is  primd 
facie  evidence  that  the  defendant  is  in  possession,  claiming  under 
such  title. ^ 

§  44.  Where  a  person  made  a  deed  to  A  of  a  life-estate  in 
unoccupied  land,  and  A  conveyed  to  B  in  fee :  held,  B  was  not 
precluded,  by  the  rule  of  practice  in  ejectment,  from  denying  the 
title  of  A,  except  as  to  the  life-estate  ;  and  that  the  heirs  of  A 
could  only  recover  by  showing,  either  that  their  ancestor  had  a 
deed  purporting  to  convey  a  fee,  or  that  he  was  in  possession, 
claiming  a  fee.^ 

§  45.  Fraud  may  be  set  up  for  the  first  time,  in  an  action  of 
ejectment,  to  impeach  a  deed.  ^^  (a) 

1  Prescott  V.  Jones,  29  Geo.  58.  "^  Wilkerson  v.  Moulder,  15  Mis.  609. 

2  Mosheru.  Yost,  83  Barb.  277.  ^  Register  v.  Rowell,  3  Jones,  312. 

3  Dominy  v.  Miller,  ib.  386.  ^  Worsley  v.  Johnson,  5  Jones,  72. 

4  Schuyler  v.  Marsh,  37  Barb.  350 ;  lO  Reynolds  v.  Vilas,  8  Wis.  471  (under 
Holbrook  v.  Brenner,  31  111.  501.  the  Code).     See  Judd  v.  Gibbs,  3  Gray, 

5  Masterson  v.  Cheek,  23  111.  72.  539. 

6  McMinn  v.  Mayes,  4  Cal.  209. 

(a)  Possession  by  a  grantor  gives  the     dence  of  title.      "Wells  v.  Jackson,  47  N. 
grantee  such  seisin,  as  will  maintain  a  writ     H.  235. 
of  entry  against  one  who  shows  no  evi-         A  quitclaim  deed  maintains  ejectment, 


BOOK   II.] 


TITLE,   EXECUTION. 


165 


§  46.  Questions  often  arise,  relating  to  adverse  title,  and  the 
right  of  recovery  in  ejectment,  where  the  parties  stand  in  the 
relation  of  vendor  and  purchaser     (See  §§  16,  18.) 

§  47.  The  distinction  is  made,  that  one  in  possession  under  an 
executory  contract  may  hold  adversely  as  against  strangers.  But 
his  possession  is  not  adverse  to  the  vendor,  until  after  perform- 
ance.^ Thus  a  vendee  entering  into  possession,  under  a  contract 
of  purchase,  with  an  unconditional  bond  for  title  to  be  given  at  a 
stipulated  time,  does  not  hold  adversely  to  the  vendor  until  the 
purchase-money  is  paid.^ 

§  48.  Where  the  plaintiff  was  in  possession  several  years,  claim- 
ing title,  and  the  defendant  went  into  possession  under  a  con- 
tract, whereby  he  agreed  to  purchase  the  improvements  of  the 
plaintiff  and  his  title,  as  soon  as  it  should  be  settled,  should  it 
prove  to  be  good,  the  contract  reciting  that  the  title  was  then  in 
dispute ;  held,  abundant  evidence  of  title  in  the  plaintiff  to  sus- 
tain an  action  of  ejectment  against  the  defendant,  aside  from  the 
rights  of  the  defendant  under  the  contract.^ 

§  49.  An  execation,  as  well  as  a  voluntary  conveyance,  may  be 
the  foundation  of  adverse  title.'^  Thus,  in  ejectment  brought  by 
the  execution  defendant,  to  recover  land  levied  on  and  sold  by  the 


1  Vrooman  v.  Shepherd,  14  Barb.  441 ; 
McClanalian  v.  Barrow,  27  Miss.  G64  ;  Se- 
crest  V.  M'Kenna,  6  Rich.  Eq.  72. 

2  Stamper  v.  Griffin,  12  Geo.  450. 

3  Spencer  v.  Tobey,  22  Barb.  260. 

*  See    Spaulding    v.     Goodspead,    39 

if  the  grantor  could  have  maintained  it. 
Downer  v.  Smith,  24  Cal.  114. 

In  Pennsylvania,  in  actions  of  eject- 
ment, it  is  often  allowable  to  show  the 
manner  in  which  the  defendant  came  into 
possession,  without  reference  to  the  strict 
legal  effect  of  the  deed, — that  he  came 
in  under  color  of  title,  &c.  Thus  the 
deed  of  an  administrator  is  evidence, 
although  void  for  want  of  power  to  exe- 
cute it.     Moody  v.  Fulmer,  3  Grant,  17. 

A  registered  deed  is  ailmissible  without 
other  proof,  unless  an  affidavit  alleging 
forgery  be  filed  as  provided  by  the  (Ga. ) 
Code.     Doe  v.  Roe,  30  Ga.  4G3. 

A  party,  in  order  to  prove  title,  must 
not  simply  produce  a  deed,  but  show  pos- 
session in  the  grantor,  or  accompanying 
the  deed.  But  when,  as  matter  of  law 
and  fact,  it  is  found  or  conceded  that  a 
party  named  has  title ;  his  possession  is 
presumed,  and  the  occupation  by  any 
other  person  is  presiuned  to  be  in  subor- 


Maine,  564  ;  Wilson  v.  Palmer,  18  Tex. 
592  ;  Hill  v.  Oliphant,  41  Penn.  364  ;  Gautt 
V.  Cowan,  27  Ala.  582;  Bank,  &c.  v. 
Eastman,  44  N.  H.  431 ;  Blain  v.  Cop- 
pedge,  16  Mis.  495. 


dination  to  the  legal  title,  unless  the 
premises  have  been  heldadverseh'  to  such 
legal  title  for  twenty  years.  Stevens  v. 
Hauser,  39  N.  Y.  .302. 

Where  a  plaintiff  in  ejectment  gave  in 
evidence  a  warrant  out  of  the  common- 
wealth in  1793,  and  a  survey  in  17',i4  to 
A,  and  next  offered  a  deeil  dated  in  1840 
from  one  B  ;  held,  the  deed,  to  be  admis- 
sible as  evidence  of  a  conveyance  of  A's 
title,  must  be  supported  by  proof  of  pos- 
session in  B,  or  pa\"ment  of  taxes,  or 
control  of  it  at  some  time  by  him.  War- 
ner i».  Henljy,  48  Penn.  187.  The  office 
copy  of  a  deed,  conve^'ing  lamls  in  two 
counties,  and  recorded  in  one  only,  is  evi- 
dence in  ejectment  for  lands  in  the  other. 
Wheeler  v.  Winn,  53  Penn,  122. 

The  demandant  may  introduce  in  evi- 
dence a  deed  recorded  since  tiie  tlate  of 
his  writ,  if  no  intervening  title  is  relied 
on  by  the  tenant.  Howland  v.  Crocker,  7 
Allen,  153. 


166  DISSEISIN,    EJECTMENT,  REAL   ACTION.  [BOOK   II. 

sheriff,  against  the  purchaser  at  the  sheriff's  sale  ;  such  purcliaser 
need  only  show,  primd  facie,  a  judgment,  execution,  sale,  and 
sheriff's  deed.^  (a) 

§  50.  This  form  of  title  often  involves  questions  relating  to  an 
alleged  fraudulent  conveyance. 

§  51.  In  Massachusetts,  a  writ  of  entry  lies,  under  Stat.  1844, 
c.  107,  §  4,  to  recover  possession  of  real  estate  taken  on  execu- 
tion against  a  debtor,  who  has  purchased  it,  and  caused  it  to  be 
conveyed  to  a  third  person  in  order  to  secure  it  from  his  cred- 
itors, only  when  the  estate  has  been  set  off  by  appraisement  to 
the  judgment  creditor;  and  not  when  the  estate,  being  an  equity 
of  redeeming  land  mortgaged,  has  been  sold  on  execution.^ 
Where  there  is  a  conveyance  in  fraud  of  creditors,  a  demandant, 
who  has  levied  upon  the  land,  must  prove  himself  a  creditor,  as 
against  the  defendant,  the  grantee.  The  judgment  of  the  de- 
mandant for  his  debt  is  conclusive.^ 

§  51  a.  Land  belonging  to  A  was  attached  at  the  suit  of  Hollis 
B,  which  name  was  used,  by  mistake,  for  Horace  B.  While  under 
attachment,  A  conveyed  the  land  to  C.  In  the  suit,  judgment 
and  execution  were  recovered,  and  the  land  duly  levied  upon. 
Held,  C  could  not  recover  the  land,  whether  evidence  was  or  was 
not  admissible  to  show  the  mistake.* 

§  52.  Under  the  law  of  Maryland,  where  the  distinction  between 
law  and  equity  is  accurately  preserved,  a  plaintiff,  who  has  both 
sold  and  bought  the  land  in  question  on  execution,  cannot,  in  a 
subsequent  ejectment,  introduce  parol  evidence  that  the  defend- 
ant's title,  which,  upon  the  face  of  his  deed,  was  held  in  trust  for 
his  wife  and  children,  was  so  held  in  fraud  of  creditors. ^ 

1  Mercer  v.  Doe,  6  Ind.  80.  *  Emerson  v.  Collamore,  33  Maine,  581. 

2  Foster  v.  Durant,  2  Gray,  538.  5  Smith  v.  McCann,  24  How.  398. 

3  Inman  v.  Mead,  97  Mass.  310. 

(a)  In  England,  tlie  writ  of  elegit,  with  have  relied  in  the  previous  suit  against 
the  inquisition  and  return  thereupon,  is  him.  Evans  v.  Robhins,  29  Iowa.  472. 
conclusive  proof  of  title  prior  to  the  re-  A  plaintiff,  claiming  under  an  order  of 
turn,  as  against  the  judgment  debtor,  seizure  and  sale  by  a  slierifF,  must  prove 
Martin  v.  Smith,  3  H.  &  N.  959.  A  peti-  the  regularity  of  the  proceedings.  Sargi 
tion  is  demurrable,  which  sets  out  speciii-  v.  Colmer,  22  La.  An.  20. 
cally  the  title,  tracing  it  through  a  sheriff's  If  the  demandants  claim  under  an  at- 
sale,  if  it  appears  on  the  face  of  the  peti-  tachment  made  by  their  grantor,  suc- 
tion and  from  the  exhibits  made  part  of  it,  ceeded  by  a  levy,  the  defendant,  for  the 
that  the  sale  was  not  made  on  the  day  purpose  of  disproving  a  seisin  within 
fixed  by  law,  and  there  is  no  allegation  twenty  years,  may  show  that  the  attach- 
that  the  defendant  consented  to  the  sale  raent  was  void,  and  that,  after  the  attach- 
as  made.     Wile  v.  Sweeny,  2  Duv.  161.  ment  and  before  the  levy,  the  debtor  was 

Where  the  plaintiff  claims  under  a  judi-  decreed  a  bankrupt,  and  was  not  in  pos- 

cial  sale,  the  defendant  cannot  set  up  in  session  at  the  time. of  the  levy.     Poor  v. 

defence  matters   upon   which  he   might  Larrabee,  50  Maine.  543. 


BOOK   II.]  TITLE,    EXECUTION.  167 

§  52  a.  An  officer's  deed,  under  an  execution  against  a  third 
party,  is  not  admissible  in  favor  of  a  defendant  in  ejectment,  witli- 
out  proof  that  he  thereby  acquired  some  title.^ 

§  53.  Where  a  purchaser  at  sheriff's  sale  was  guilty  of  actual 
fraud  in  making  the  purchase,  the  tenant  in  ejectment,  claiming 
under  him,  is  not  entitled  to  a  return  of  the  purcliaso-money, 
either  before  suit  or  by  a  conditional  judgment,  from  the  assignee 
of  the  insolvent  seeking  to  vacate  the  sale.- 

§  53  a.  In  Maine,  the  proceedings  should  be  by  bill  in  equity, 
and  not  by  writ  of  entry,  for  the  recovery  of  land  by  one,  who 
claims  title  under  a  levy  against  a  debtor  having  only  an  equitable 
interest.-'^ 

§  53  b.  Where  the  defendant  in  a  judgment  is  in  possession  at 
the  time  of  levy  and  sale,  he  can  make  no  defence  in  ejectment 
against  the  purchaser,  who  acquires  a  right  at  least  to  his  posses- 
sion.'* If,  after  the  sale,  the  defendant  in  execution  abandons  the 
land,  and  afterwards  returns  to  it,  and  is  sued  in  ejectment  by 
the  purchaser,  he  may  show  an  outstanding  title,  if  he  has  taken 
possession  and  holds  under  that  title. ^  If  such  purchaser  is  a 
plaintijQT,  he  need  not  show  that  the  defendant  in  execution  had 
title,  but  only  that  he  was  in  possession,  at  the  time  of  the  sale, 
in  order  to  shift  the  burden  of  proofs 

§  53  c.  Where  the  plaintiff's  title  depends  upon  a  levy,  he 
must  prove  a  valid  judgment,  if  the  defendant  is  not  a  party  or 
privy  to  it.'^ 

§  53  d.  In  ejectment  by  purchaser  at  sheriff's  sale  against  the 
judgment  debtor,  he  need  only  show  a  judgment,  execution,  and 
sheriff's  deed.^'' 

§  53  e.  The  plaintiff  in  an  action  of  ejectment  may  show 
that  a  judgment,  under  which  the  defendant  claims  by  a  sale 
under  execution  upon  it,  had  been  satisfied  before  such  sale, 
although  he  has  introduced  such  judgment  as  a  part  of  his  own 
case.^ 

§  53/.  Where  the  plaintiff  relies  on  a  prior  possession,  he  may 
introduce  in  evidence  a  judgment  he  recovered  against  a  third 

1  McGarrity  i-.Bvintrton,  12Cal.  426.  ^  Haves  v.  Bernard,  38  111.  2U7. 

2  McCaskey  v.  Graff",  2;!  Penn.  321.  ^  Tehhetts  c.  Estes,  52  Maine,  566. 

^  Eastman  v.  Fletcher,  45  Maine,  302.  8  Sinclair  v.  Wortliy,  1  AVins.  (X.  C.) 

♦  Bunker  v.  Rand,  19  Wis.  253  ;  38  111.    No.  1,  114. 

297.  s  Weston  v.  Clark,  37  Mis.  668. 

*  Hartley  v.  Ferrell,  9  Florida,  374. 


168  DISSEISIN,  EJECTMENT,  REAL   ACTION.  [BOOK   II. 

party  before  the  defendant's  entry,  and  the  acts  of  the  officer 
thereunder,  putting  him  in  possession.^ 

§  53  g.  As  against  a  plaintiff  who  claims  only  by  virtue  of  an 
execution  and  levy,  the  defendant,  though  in  possession  without 
title,  and  not  a  party  to  the  judgment  and  levy,  may  object  to  the 
levy  .2 

§  53  h.  The  purchase  of  land  at  a  sale  on  execution  is  no  de- 
fence to  an  action  of  ejectment,  if  the  time  for  redemption  has 
not  expired.^ 

§  53  i.  The  execution  defendant  cannot  defeat  the  recovery  of 
possession  by  the  execution  purchaser,  by  setting  up  a  title  in 
some  third  person.* 

§  53  j.  When  a  levy  is  properly  made,  and  seizure  and  posses- 
sion delivered  to  the  creditor,  and  the  execution  and  return  are 
properly  recorded,  and  the  time  for  redemption  has  expired ;  the 
creditor  may  bring  his  writ  of  entry  without  further  entry .^ 

§  53  k.  Where  title  is  in  dispute  between  two  parties,  one  of 
whom  claims  under  a  sheriff's  deed,  and  the  other  under  a  prior 
deed  from  the  execution  debtor;  the  former  must  show  affirma- 
tively that  the  judgment  lien  attached  to  the  land  before  its  sale 
to  the  latter.^ 

§  53  /.  The  title  of  a  mortgagee  in  possession  after  condition 
broken  is  not  divested  by  a  sale  on  a  judgment  against  the  mort- 
gagor, so  as  to  allow  a  recovery  in  an  action  of  ejectment  by  a 
purchaser  at  such  sale.  Otherwise,  if  the  mortgagee  never  took 
possession." 

§  53  m.  After  the  sale  of  an  equity  of  redemption  on  execu- 
tion, the  mortgage  was  foreclosed,  and  the  mortgagee  and  A 
became  purchasers  at  the  sale  on  foreclosure.  The  premises  were 
then  conveyed  to  the  mortgagor,  in  pursuance  of  a  parol  agree- 
ment between  him  and  the  mortgagee,  that  such  conveyance 
should  be  made  upon  his  payment  of  the  mortgage  debt.  More 
than  ten  years  after  the  sheriff's  deed  was  executed,  the  exe- 
cution purchaser  was  sued  by  the  mortgagor,  to  recover  pos- 
session. Held,  the  mortgagor  was  prevented  by  the  Statute  of 
Limitations  only  from  taking  advantage  of  any  irregularity  in  the 
sale  under  execution,  but  the  agreement  did  not  make  the  re- 

1  Moon  V.  Eollins,  36  Cal.  333.  5  Ladd  v.  Dudley,  45  N.  H.  61. 

2  Perry  v.  Whipple,  38  Vt.  278.  6  Boatright  v.  Porter,  32  Ga.  130. 

*  McMinn  v.  O'Connor,  27  Cal.  238.  ">  Doe  d.  Hall  v.  Tunnell,  1  Houst.  320. 

*  McDonald  v.  Badger,  23  Cal.  393. 


BOOK   II.]  TITLE,   EXECUTION.  169 

transfer  to  liim  inure  to  the  benefit  of  the  purchaser  under  exe- 
cution, and  he  could  recover.^ 

§  53  n.  Defendants  in  an  action  of  ejectment  claimed  under  a 
permission  hy  the  mortgagors  to  take  possession  given  subse- 
quently to  a  sheriff's  deed  upon  foreclosure  and  sale  to  the  plain- 
tiff    Held,  such  permission  conferred  no  right  of  entry.- 

§  53  0.  Where  the  terms  of  an  executory  contract  have  been 
fulfilled  by  the  vendee,  and  he  has  received  a  conveyance,  eject- 
ment will  not  lie  by  the  grantee  of  a  sheriff  who  has  sold  the 
property  on  a  judgment  docketed  against  the  devisee  of  such  con- 
tract, subsequently  to  the  making  thereof,  but  prior  to  its  per- 
formance.^ 

§  53^3.  In  ejectment  to  enforce  payment  of  purchase-money  by 
a  vendor  against  the  vendee  in  possession,  the  defendant  may 
give  in  evidence  a  deed  to  former  owners,  who  were  then  part- 
ners, and  process  against  one  of  them,  with  the  sheriff's  sale  of 
his  interest,  to  show  that  the  title  of  the  plaintiff,  who  claimed 
under  another  sheriff's  sale  to  him  on  an  execution  against  both 
partners,  was  defective,  and  that  the  deed  offered  by  him  in  pur- 
suance of  the  contract  was  not  such  as  he  was  bound  to  give.^ 

§  53  q.  Where  tenants  in  common  file  a  bill  praying  to  have 
land  sold,  and  the  court  orders  a  sale,  and  the  Master  makes  a 
deed  to  a  purchaser,  and  the  purchaser  sells  to  a  third  person; 
the  tenants  in  common  cannot  maintain  ejectment  against  the 
latter,  and  impeach  the  deed  of  the  Master.^ 

§  53  r.  A  report  of  street  commissioners  declared  that  a  cer- 
tain lot,  including  the  premises  in  dispute,  was  required  for  the 
purpose  of  being  closed,  and  of  vesting  the  title  in  the  city  of 
New  York,  and  certain  lots  adjoining  were  designated,  as  assessed 
for  and  benefited  by  the  improvement.  In  the  margin,  and  oppo- 
site the  description  of  the  several  lots,  was  the  name  of  A  B,  and 
a  sum  of  money.  The  report  also  stated,  that  unknown  owners 
were  seised  in  fee  of  the  premises  required  to  be  taken,  subject 
to  a  right  of  way  in  owners  of  adjacent  lands.  A  second  re- 
port corrected  the  first,  by  altering  the  sums  assessed  on  certain 
of  the  lots,  and  by  allowing  A  B  $1500  in  lieu  of  assessments 
set  forth  in  the  first.     Held,  the  sum  allowed  A  B  was  the  price 

1  Wood  V.  Sanford,  23  Ind.  96.  ■•  Erwin  v.  Mvcrs,  46  Pcnn.  96. 

2  Ki<ld  V.  Teeple,  22  Cal.  2-55.  »  Beard  v.  Hall,  63  N.  C.  39. 

3  Sniith  V.  Gage,  41  Barb.  60 


170 


DISSEISIN,   EJECTMENT,  REAL   ACTION. 


[book  II. 


paid  for  liis  title  by  the  city,  that  the  receipt  of  the  money  by 
him  was  a  waiver  of  all  objections  to  the  right  of  the  city  to  take 
the  land,  and  that  a  purchaser  upon  an  execution  sale  under  an 
old  judgment  against  him,  sixteen  years  after  the  land  was  taken 
by  the  city,  could  not  maintain  ejectment  against  the  city's 
grantee.^ 


§  54.  As  has  been  already  explained,  the  object  of  the  action 
of  ejectment  is  to  recover  possession  of  the  laud  in  question. 
Possession,  or  the  right  of  possession,  therefore,  on  the  part  of 
the  respective  parties  to  the  action,  becomes  a  most  material 
inquiiy.^  (a)  When  an  ejectment  is  brought  against  a  party  in 
possession,  by  one  who  has  never  had  actual  possession,  and  none 
is  shown  in  his  grantor  at  the  date  of  the  grant ;  the  claimant 
must  go  back  and  show  that  some  one,  under  whom  he  claims, 


1  Sherman  v.  McKeon,  38  N.  Y.  266. 

(a)  A  person  in  possession  is  presumed 
to  have  acquired  the  title  whicli  the  people, 
in  their  capacity  of  sovereign,  once  held. 
But  when  the  people  are  plaintiffs,  it 
seems,  t!ie  presumption  in  the  defendant's 
favor  is  sliifted  to  the  other  side,  on  show- 
ing tliat  the  possession  has  been  vacant 
at  any  time  within  forty  years.  People  v. 
Trinity  Cliurcli,  22  N.  Y.  (8  Smith),  44. 

In  Louisiana,  to  sustain  a  possessory 
action,  it  is  incumbent  upon  the  plaintiff 
to  prove  tliat  he  had  real  and  actual  pos- 
session at  the  instant  when  the  disturbance 
occurred,  and  that  he  has  suffered  a  real 
disturbance,  either  in  fact  or  in  law,  within 
a  year  before  the  suit  was  brought.  Mil- 
lard V.  Richard,  13  La.  An.  572.  An  action 
of  jactitation  cannot  be  maintained  by  a 
party  not  in  possession.  Arrovvsmitli  v. 
Durell,  14  La.  An.  849. 

In  California,  in  an  action  of  ejectment 
to  settle  title,  the  plaintiff  must  have  pos- 
session.    Lyle  V.  Rollins,  25  Cal.  437. 

Possession  must  be  proved  in  an  action 
under  (Min.)  Gen.  Sts.  c.  75.  Eastman  v. 
Lamprey,  12  Minn.  153. 

A  party  claiming  title  by  prior  posses- 
sion must  show  actual  possession  or  occu- 
pation by  himself  or  his  grantors  under 
claim  of  title.  Borel  v.  Rollins,  30  Cal.  408. 
When  possession  is  put  in  issue  by  the 
answer,  the  plaintiff  is  bound  to  prove  pos- 
session at  the  time  the  action  was  com- 
menced. The  fact,  that  the  defendant  was 
seen  in  possession  by  the  plaintiff's  agent, 
and  claimed  to  l>e  in  possession,  does  not 
estop  him  from  saying  that  he  was  not, 
though  the  plaintiff  brought  the  action, 


2  See  Sheik  v.  M'Elroy,  20  Penn.  25. 

acting  on  this  information.  Pope  v.  Dal- 
ton,  31  Cal.  218. 

Prior  possession  will  prevail  over  a  subse- 
quent one  acquired  by  mere  entry,  without 
right.     Buckner  v.  Chambliss,  30  Ga.  652. 

The  elder  possession,  though  for  a  less 
term  than  twenty  years,  carries  with  it  a 
presumption  of  title  sufficient  to  put  the 
defendant  on  his  defence,  and  will  over- 
come the  later  possession  of  a  naked  tres- 
passer.    Leport  V.  Todd,  3  Vroom.  124. 

In  the  absence  of  other  evidence  of  title, 
priority  of  entry,  claiming  title,  shows  the 
better  right.  Cram  v.  Ingalls,  18  N.  H.  613. 
Possession,  whether  personal  or  through 
an  agent,  tenant,  or  licensee,  is  prima  facie 
evidence  of  a  title  in  fee-simple.  A  de- 
mandant, whose  claim  consists  in  posses- 
sion, under  a  claim  to  title,  may  trace  that 
title  back  indefinitely,  though  even  in  the 
remotest  party  he  is  unable  to  establish 
seisin.     Rand  v.  Dodge,  17  N.  H.  343. 

The  fact  that  a  party  has  entered  by 
fraud  does  not  affect  his  right  of  posses- 
sion, if  he  had  a  right  of  entry.  Depuy 
V.  Williams,  26  Cal.  309. 

Prior  possession,  accompatiied  by  a 
claim  of  the  fee,  raises  a  presumption  of 
title,  as  against  the  naked  possession  ;  and 
the  grantee  of  the  person  so  liolding  prior 
possession  succeeds  to  his  rights.  Dale  v. 
Faivre,  43  Mis.  556. 

A  person  in  possession  has  a  devisable 
interest;  and  the  heir  of  his  devisee  can 
maintain  ejectment  against  one  who  has 
entered,  and  cannot  sliow  title  or  posses- 
sion prior  to  the  testator.  Asher  v.  Whit- 
lock,  Law  Rep.  1  Q.  B.  1. 


BOOK    II.]  TITLE,    ADVERSE    POSSESSION.  171 

had  at  one  time  possession  and  title,  or  at  least  the  latter,  and 
tbat  he  has  succeeded  absolutely  to  all  such  right.^  On  the  other 
hand,  the  demandant  who  shows  a  possession  of  himself  or  those 
under  whom  he  claims,  prior  in  time,  is  entitled  to  recover  against 
a  tenant,  who  shows  no  title,  but  merely  possession  at  the  time 
of  suit  brought;  although  such  demandant  may  be  a  wrong-doer 
as  to  the  real  owner.^  So  a  party  in  quiet  possession  cannot  be 
legally  dispossessed  by  force,  although  he  cannot  show  a  perfect 
title.^  And  the  person  owning  the  title  to  land  is  constructively 
in  possession,  until  some  adverse  claimant  goes  into  the  occu- 
pancy, with  intent  to  claim  the  fee,  as  against  the  true  owner ; 
manifested  by  declarations  or  by  acts  of  ownership,  which  are 
open,  notorious,  and  visible.*  But  ejectment  cannot  be  main- 
tained for  land  of  which  the  plaintiff  is  himself  in  possession.^ 

§  55.  Substantially  the  same  proposition  is  stated  in  the  terms, 
that  possession  will  sustain  an  action  against  an  intruder  ;^  that 
possession  gives  a  primd  facie  title  ;  ''  that  possession  with  color 
of  title  is  sufficient,  unless  a  -better  title  is  shown  in  defence.^ 
So  it. is  held,  that  mere  possession  is  sufficient,  though  a  title  in 
fee  is  alleged.^  So  a  person  evicted  from  possession  can,  Avithout 
showing  any  title  in  himself,  maintain  an  action  against  the 
grantee  of  his  disseisor,  who  is  also  without  title. ^"^  So  a  defend- 
ant without  valid  title  cannot  put  the  plaintiff,  who  was  in  pos- 
session until  dispossessed  by  the  defendant,  with  a  claim  of  right, 
to  proof  that  he  has  not  conveyed  away  his  title.^^  In  ejectment,  a 
prior  occupancy  is  a  sufficient  title  against  a  wrong-doer ;  though 
the  evidence  must  show  a  continuous  possession,  or  at  least  that 
it  was  not  abandoned,  in  order  to  entitle  the  plaintiff  to  recover 
merely  by  virtue  of  such  possession. ^2 

§  56.  Possession,  to  justify  a  claim  of  title  in  ejectment,  must 
be  adverse.  The  subject  of  adverse  possession,  therefore,  lies  at 
the  foundation  of  the  particular  remedy  which  we  are  now  con- 
sidering. Adverse  possession  is  equivalent  to,  or  commences 
with,  disseisin,  or  ouster.    "  An  ouster  is  a  wrongful  dispossession 

1  Bartow  v.  Draper,  5  Duer,  130.  "^  Hutchinson    v.  Perley,    4   Cal.    33  ; 

'^  Ilublianl   V.    Little,   'J    Cusli.    475;  Ilicks  y.  Davis,  ib.  G7  ;  I'luine  f.  Seward, 

Nagle  V.  Macy,  'J  Cal.  420.     vSee  Bird  v.  ib.  94. 

Lisbros,  ib.  1  ;  Perkins  v.  Blood,  3(j  Verm.  8  Winans  v.  Christy,  4  Cal.  70. 

273;  Schultz  v.  Arnot,  33  Mis.  172.  »  Ib. 

3  La<l(l  r.  Stevonson,  1  Cal.  18.  10  Clute  v.  Voris,  31  Barb.  511. 

*  Morrison  r.  Hays,  1'.)  Geo.  294.  n  Kiissell  v.  Brooks,  1  Williams,  640. 

5  Kribbs  r.  Downing,  25  IVnn.  399.  12  Wilson  1;.  Palmer,  18  Tex.  692. 

•>  Shuniway  v,  Phillips,  22  Penn.  151. 


172  DISSEISIN,  EJECTMENT,  REAL   ACTION.  [BOOK   II. 

or  exclusion  of  a  party  from  real  property  who  is  entitled  to  the 
possession."  ^  (a)  Like  other  wrongful  acts,  it  is  held  that 
ouster  may  be  committed  by  an  agent? 

§  57.  It  is  the  general  rule,  though  in  many  States  altered  by 
statute,  that  land  cannot  be  conveyed  which  is  at  the  time  (and 
continues  to  be)  in  the  actual  adverse  possession  of  another.^ 
But  the  mere  purchase  of  an  outstanding  invalid  claim  does  not 
make  an  adverse  possession  less  hostile  to  the  true  title,  nor  de- 
vest a  title  already  complete  under  the  Statute  of  Limitations.* 

§  58.  An  entry,  to  constitute  an  ouster,  and  give  possession, 
must  be  with  claim  of  title ;  but  such  claim  need  not  be  under  a 
deed  or  other  writing.  If  under  a  deed,  the  possession  may 
extend  further  than  the  precise  boundaries  described  in  it.^  (6) 
A  hostile  invasion  of  another's  rights  is  one  of  the  elements  of  title 
by  adverse  possession ;  if  there  be  consent  on  the  part  of  the 
owner,  the  entry  for  the  purpose  of  doing  the  act  is  not  tortious. 
The  possession  must  be  actual,  adverse,  exclusive,  and  continu- 
ous, and  under  claim  of  title,  to  auihorize  the  presumption  of  a 
deed  ;  and  these  facts  are  questions  for  the  jury.^ 

§  59.  There  are  various  exceptions  to  the  rule  of  title  by 
adverse  possession.  Tims,  upon  a  universally  recognized  ground 
of  public  policy,  there  can  be  no  adverse  possession  against  the 
commonwealth.''  So,  whether  a  possession  is  adverse,  depends 
upon  the  intention  with  which  it  was  taken  and  held.  If  taken 
in  subordination  to  the  title  of  another,  it  cannot  be  changed  into 
an  adverse  possession  by  the  party  himself,  except  by  a  disclaimer, 
and  an  assertion  of  an  adverse  title,  with  notice  thereof  to  the 
party  under  whom  he  entered.  Thus  an  open,  exclusive,  and 
uninterrupted  possession  of  land  for  more  than  twenty  years, 
taken,  held,  and  claimed  under  a  parol  gift  from  the  plaintiff  for  a 
life  not  yet  terminated,  is  not  such  an  adverse  possession  as  will 

*  Per  Butler,  J.,  Newell  v.  Woodruff,  ^  Kiucheloe  v.  Tracewells,  11  Gratt. 
30  Conn.  497.  587. 

2  Munson  v.  Munson,  ib.  425.  **  Armstrong   v.  Eisteau,     5  Md.  256. 

3  Kiucheloe  v.  Tracewells,  11  Gratt.  See  Reformed  v.  Schoolcraft,  5  Lans.  206  ; 
587.  Church  v.  Meeker,  34  Conn.  421. 

*  Owens  V.  Myers,  20  Penn.  134.  1  Koiner  v.  Rankin,  11  Gratt.  420. 

(a)  In  Vermont,  an  entry  upon  land  by  adverse  possession,  though  he  accepted  a 
a  stranger,  under  claim  of  right,  is  an  ac-  deed  from  the  defendant's  grantor,  if  such 
tual  eviction  of  the  owner,  of  which  he  is  deed  was  made  merely  to  correct  the  de- 
bound  to  take  notice,  at  the  peril  of  losing  scription  in  the  deed  under  which  the  an- 
his  estate,  after  fifteen  years.  Whitney  i^.  cestor  of  the  plaintiff  entered.  Wall  v. 
French,  25  Vt.  663.  Shindler,  47  Mis.  282. 

(6)  A  plaintiff  may  rely  upon  his  title  by 


BOOK   11.]  TITLE,    ADVERSE   POSSESSION.  173 

bar  an  action.  Such  entry  and  claim  are  a  recognition  of  tlie 
continued  existence  of  a  subsistint;  title  in  the  legal  owner,  and 
an  athnission  of  holding  in  subordination  thereto.^  So  where  a 
party  has  taken  possession  by  a  lawful  title,  and  holds  over  after 
his  right  has  expired,  this  possession  is  not  adverse  to  the  rever- 
sioner.^  (a)  So  where  a  grantor  enters  and  occupies  for  non- 
payment of  ground-rent,  under  and  by  virtue  of  the  deed  ;  such 
entry  and  occupation  do  not  constitute  an  adverse  possession,  as 
against  the  grantee  or  those  claiming  under  him;  nor  will  the 
declaration  of  the  grantor,  made  to  a  stranger,  after  he  had  been 
in  possession  seventeen  years,  that  in  four  years  more  he  should 
have  title  by  lapse  of  time,  affect  the  nature  of  the  previous 
occupancy,  even  if  it  should  that  of  the  future.^ 

§  60.  In  reference  to  the  general  nature  of  the  possession  which 
may  be  claimed  as  adverse,  it  is  held  that  there  must  be  an  actual 
bojid  fide  occupation  or  jjossessio  pedis,  a  subjection  to  the  will 
and  control  of  the  possessor;  not  mere  assertion  of  title,  and 
casual  acts  of  ownership,  such  as  recording  deeds,  paying  taxes, 
<fec.  But  occupation  of  a  part  of  the  land  marked  by  distinct 
boundaries  is  sufficient.  Neither  cultivation  nor  any  particular 
kind  of  enclosure  is  necessary,  if  the  land  is  subjected  to  the 
party's  use  in  the  manner  indicated.*  Or,  as  is  elsewhere  held, 
actual  possession,  or  a  civil  or  legal  possession,  preceded  by  a 
natural  possession  in  the  plaintiff  or  his  authors,  is  necessary  to 
sustain  the  possessory  action.''' 

§  61.  Possession,  however  short,  will  maintain  an  action,  unless 
the  defendant  explain  it,  or  show  a  prior  possession  or  title  in 
himself  or  a  third  person.'^  Where  the  evidence  shows  possession 
by  the  same  party  at  two  periods,  the  presumption  is,  that  it  was 
the  same  in  the  interval.^  So,  on  the  other  hand,  uncontradicted 
proof,  that  the  defendant  commenced  building  a  brick  house  on 
the  premises  in  1848,  and  that  he  and  his  family  had  resided  in 
it  since  1840  or  1850,  the  trial  taking  place  in   1858,  is  sufficient 

1  Clark  u.  McChire,  10  ib.305.  5  Searles  v.  Costillo,  12  La.  An.  203. 

2  Day  V.  Cocliran,  24  Miss.  "JOl.  "  Potter  v.  Knowles,  5  Cal.  87. 

3  McCracken  v.  Roberts,  I'.i  I'cnn.  390.  ^  People  v.  Trinity  Church,  22  N.  Y. 
See  Corning  v.  Troy,  &c.,  3".)  Barb.  311.  (8  Smith),  44. 

*  Plume  V.  Seward,  4  Cal.  'J4. 

{(i)  Before  1820,  a  deed  was  made,  con-  in  1849.     Held,  the  possession  of  B  did 

ferring  a  life-estate  in  land  upon  A  and  his  not  become  adverse  to  those  having  tlie 

wife ;  and  about  tliis  time  A  conveyed  in  remainder,  until   after  the  death  of  A's 

fee  to  B.     The  wife  survived  A,  and  died  wife.     Todd  v.  Zachary,  1  Busb.  Eq.  286. 


174  DISSEISIN,    EJECTMENT,   REAL   ACTION.  [BOOK  II. 

evidence  of  possession  at  the  time  the  suit  was  brought,  which 
was  in  September,  1856.^ 

§  62.  As  we  have  ah-eady  suggested,  the  question  of  adverse 
possession  is  for  the  jury.^  Thus,  in  reference  to  the  possession  of 
the  defendant.'^  So  a  question  of  mixed  possession  is  for  the  jury.* 
So  it  is  open  to  a  jury  to  infer,  from  proof  that  the  defendant  in 
ejectment  was  living  on  a  portion  of  a  lot  of  land,  that  he  claimed 
the  whole  of  it.^  So  the  question  of  a  change  in  the  nature  of  a 
party's  possession.  Thus  the  defendant  in  ejectment  took  one  to 
a  cabin,  which  was  the  only  building  on  the  place,  let  him  the 
land  for  a  year,  then  nailed  up  the  cabin,  and  both  retired,  the 
tenant  being  charged  not  to  divulge  the  transaction.  Held,  if  this 
was  colorable  merely,  (a)  it  was  no  change  of  any  previous  pos- 
session, and  the  question,  whether  it  was  or  not,  should  be  left  to 
the  jury.'^ 

§  63.  Adverse  possession  being  thus  for  the  most  part  a  ques- 
tion of  fact,  depending  on  act  and  intent,  much  latitude  is  usually 
allowed  in  the  introduction  of  evidence  which  bears  upon  these 
points.  Thus  the  plaintiff  may  show  his  claim  of  title  to  explain 
his  possession.'^  So  a  defendant  may  prove  his  own  act  of  taking 
possession,  to  show  its  character  and  extent,  as  well  as  his  pur- 
pose in  doing  so,  as  that  was  at  the  time  manifest,  from  his  own 
concurrent  declarations.^  But,  under  some  circumstances,  parol 
evidence  is  held  inadmissible  as  to  adverse  possession.^ 

§  64,  It  has  already  appeared,  that  the  possession  necessary  to 
give  seisin,  and  establish  the  requisite  title  in  ejectment,  may 
be  constructive  or  implied,  as  well  as  actual.  And  this  principle 
is  aflSrmed  in  many  of  the  States  by  express  statutes,  which 
attempt  to  define,  usually  in   conformity  with  previous  judicial 

1  Goodhue  v.  Baker,  22  111.  262.  6  Oliver  v.  Williams,  25  Geo.  217. 

2  Gage  V.  Smith,  27  Conn.  70.  "'  Piercy  v.  Sabin,  10  Cal.  22. 

3  Scisson  V.  M'Lane,  12  Geo.  166.  8  Hood  v.  Hood,  2  Grant,  229. 

*  O'Hara  v.  Richardson,  46  Penn.  385.  9  Pasley  v.  English,  10  Gratt.  236. 

5  Fitzgerald  v.  Williams,  24  Geo.  343. 

(a)  Prior  possession  under  a  deed,  valid  can  prove  an  outstanding  valid  title  in  a 

on  its  face,  is  evidence  of  title,  as  against  third   person,  or   prior  possession   under 

mere  color  of  title.     Hicks  i).  Coleman,  25  claim  of  right  in   himself,  which  he  has 

Cal.  122.  not  abandoned,  and  whicli  is  unaffected 

Prior  possession   under  color  of  title  by  an  estoppel,  he  will  thereby  show  a 

■will  prevail,  unless  the  defendant  shows  a  better  title,  and  prevail.     An  older  will  be 

better  title,  or  unless  the  plaintiff  is  barred  preferred   to   a    junior  possession   under 

by  the  Statute  of  Limitations.     But  there  color  of  title.    Eussell  v.  Erwin's,  38  Ala. 

can   be  no  such  possession,  unless  held  44. 
with  claim  of  right ;  and,  if  the  defendant 


BOOK    II.]  TITLE,    ADVERSE   POSSESSION.  175 

decisions,  what  precise  acts  shall  constitute  constructive  posses- 


sion 


§  65.  Much  strictness  is  sometimes  adopted  upon  this  subject.^ 
Prior  possession  is  held  insufficient,  without  compliance  with  the 
statute  concerning  possessory  actions,  or  proof"  of  actual  bond 
fide  occupation.  j\[ere  entry,  without  color  of"  title,  accompanied 
by  a  survey  and  marking  of  boundaries,  is  insuflScient.'^ 

§  66.  So,  to  maintain  an  action  upon  the  ground  of  adverse 
possession  by  the  defendant;  he  must  have  actual  adverse  and 
exclusive  possession.'^  Thus  an  action  may  be  maintained,  by  the 
owner  of  land  subject  to  a  highway,  against  a  railroad  company 
who  appropriate  the  land  for  their  own  purposes.^  But  an  action 
does  not  lie  against  a  city,  for  land  used  as  a  public  street,  not- 
withstanding the  grading,  paving,  and  cleaning  of  the  street  by  the 
city ;  these  acts  involving  no  possession  or  claim  of  title.^^  So 
where  the  ancestor  of  the  demandant  was  disseised,  and  neither 
the  demandant  nor  his  ancestor  entered  or  demanded  possession 
afterwards,  or  did  any  other  similar  act  to  assert  his  title,  while 
the  defendants,  who  were  not  the  original  disseisors,  were  on  the 
land  ;  they  cannot  be  charged  as  disseisors  and  tenants  of  the 
freehold,  at  the  election  of  the  demandant,  and  are  not  liable  as 
such,  if  they  neither  have  nor  claim  any  freehold  interest  in  the 
demanded  premises.'^  So  an  admission  of  the  plaintiff's  title 
is  not  sufficient  ground  for  a  judgment  against  the  defendant.^ 
And,  in  general,  as  we  have  seen,  intention  is  necessary  to  dis- 
seisin.'^ 

§  67.  The  class  of  cases,  in  which  the  question  of  constructive 
possession  has  chiefly  arisen,  are  those  relating  to  lands  not  built 
upon,  and  partially  wild  and  unimproved ;  turning  more  particu- 
larly upon  the  point,  whether  and  to  what  extent  the  enclosure, 
cultivation,  <fec.,  of  a  part  will  give  title  to  the  whole.  It  is  held, 
that,  while  lands  remain  in  a  state  of  nature,  there  cannot  be 
adversary  possession  against  an  elder  title,  except  by  such  acts  of 

1  Royall  I'.  Lisle,  15  Geo.  545  ;  O'Hara  ■«  Schuyler   v.  Marsli,  37   Barb.   350  ; 
V.  Riclianlson,  40    Penn.   385;    HoUiiigs-  Girard  v.  New  Orleans,  13  La.  An.  2U5; 
head  v.  Naiimair,  45  Penn.  141  ;  People  v.  Eaton  v.  Jacobs,  4'J  Maine,  55'.). 
Batciielder,  27  Cal.  72  ;  Doolittle  i-.  Tice,  &  Lozier  v.  N.  Y.,  &c.,  42  Harb.  405. 
41  Barb.  181;  Gardneri;.  Gooch,  48  Maine,  ^  Comerhoven  v.  Brooklyn,  38  Barb.  9. 
487.  ■^  Tappau  v.  Tappan,  30 "N.  II.  <t8. 

2  See  Royall  v.  Lisle,  15  Geo.  545 ;  8  Girard  v.  New  Orleans,  13  La.  An. 
"Wood  V.  M'Guire,  15  Geo.  202  ;  Sheik  v.  295. 

M'Elroy,  20  Penn.  25.  9  Riley  v.  Griffin,  16  Geo.  141. 

3  Miirphy  v.  Walliugford,  6  Cal.  648. 


176  TITLE,   ADVERSE   POSSESSION.  [BOOK   II. 

ownersliip  as  change  their  condition.^  So  proof,  that  no  person  but 
the  demandant  had  occupied  the  land  for  thirty  years, and  that  he 
had  cut  wood  upon  it,  and  had  always  fenced  portions  of  it,  does 
not  sufficiently  show  an  open,  exclusive,  and  adverse  possession.^ 
Nor  the  occasional  occupation  of  a  station  in  water  for  one  or  two 
months  every  year,  during  the  fishing  season.^  Nor  cutting  grass 
nearly  every  year  on  flats  covered  a  part  of  the  time  by  the  tide.'* 
Nor  cutting  timber  for  fences,  by  one  tenant  in  common,  at  inter- 
vals, for  over  twenty  years,  in  a  cedar  swamp,  surrounded  by  cul- 
tivated lands.^  Nor  an  insufficient  fence  enclosing  a  part  of  the 
land.^  Nor  the  mere  throwing  of  manure  on  another's  land."  Nor 
cutting  of  trees  on  land,  susceptible  of  other  uses  and  enjoyment, 
and  feeding  hogs  on  it,  under  color  of  title,  for  seven  years.^ 
And,  in  general,  where  a  tenant  in  possession  exercises  the  ordi- 
nary rights  of  an  owner,  but  acknowledges,  during  the  whole 
period  of  his  occupation,  that  the  demandant  or  his  ancestor  owns 
the  premises  ;  such  acknowledgments  qualify  and  explain  his  acts, 
and,  if  there  is  no  evidence  to  the  contrary,  the  demandant  is 
entitled  to  a  verdict.^  (a)  So  where  the  defendant  claimed  ad- 
versely to  a  line  not  discernible ;  held,  the  claim  could  not  be 
sustained,  though  he  had  for  over  twenty  years  enclosed  the  land 
in  dispute,  with  his  other  lands,  by  a  fence  which  embraced  other 
land  of  the  plaintiff,  beyond  the  line  to  which  he  claimed.^*'  And 
it  is  held,  in  the  new  State  of  Nevada,  that  the  right  to  bring 
ejectment,  on  the  ground  of  possession,  for  public  land,  depends 
on  the  elements  of  character,  locality,  and  purpose.  The  joosses- 
sion  must  be  bond  fide,  not  a  mere  staking  offM 

§  67  a.  A  defendant  in  ejectment  claimed  title  by  disseisin  and 
twenty  years'  possession ;  relying  upon  an  entry,  cutting  wood, 

1  Koiner  v.  Rankin,  11  Gratt.  420.  ^  Baldwin  v.  Simpson,  12  Cal.  560. 

2  Frye  v.  Gragg,  35  Maine,  29.  "^  Shroder  v.  Breneman,  21  Peon.  225. 

3  McCulIough  V.  Wall,  4  Rich.  68.  »  Loftin  v.  Cobb,  1  Jones,  406. 

*  Commonwealth  v.  Roxbm-y,  9  Gray,  9  Cilley  v.  Bartlett,  19  N.  H.  312. 

451.      See   Hammond    v.   Inloes,   4   Md.  ^^  Wood  v.  Wiilard,  37  Verm.  377. 

138.  11  Sankey  v.  Noves,  1  Nev.  68. 

5  Ewer  V.  Lowell,  9  Gray,  276. 

(a)  By  the  Mexican  law,  as  well  as  the  Actual  possession  of  a  small  portion  of  a 

common  law,  the  possession  of  one  having  large  tract  of  land,  with  a  claim  of  title  to 

neither  title  nor  color  of  title  does  not  ex-  the  whole,  will  not,  under  the  law  of  Mex- 

tend  beyond  tlie  bounds  of  his  actual  occu-  ico,  entitle  the  party  to  maintain  a  posses- 

pation ;  and  the  fact,  that  his  cattle  and  sory  action,  when  it  appears,  on  the  face 

horses  have  roamed  and  grazed  upon  a  of  the  pajiers  under  -whicli  he  claims,  that 

particular  tract  of  land,  does  not  of  itself  his  title  is  void.     Sunol  v.  Hepburn,  1  Cal. 

make   out  an  actual  possession  in  him.  254. 


BOOK   IT.]  TITLE.   ADVERSE   POSSESSION.  177 

in  successive  years  over  the  wliole  land,  clearing  and  cultivation, 
but  without  any  building  or  enclosure.  He  requested  the  court 
to  rule,  that  an  entry  and  claim  of  title,  cutting  wood  and  timber 
from  year  to  year,  and  such  undisputed  possession  for  twenty 
years,  proved  a  title.  The  court  refused  this  instruction,  but 
ruled,  that  twenty  years'  uninterrupted,  adverse  occupation  of 
land,  under  a  claim  of  right,  showed  a  title  ;  but  there  could  be  no 
adverse  use  of  wild  land  or  woodland.  Held,  under  the  circum- 
stances, the  refusal  and  instruction  were  both  correct.^ 

§  68.  But  where  an  owner  of  land  conveyed  it,  reserving  a 
stream  running  over  the  land,  but  for  nearly  thirty  years  neg- 
lects to  take  possession  thereof,  and  others  divert  the  stream, 
and  have  the  open,  notorious,  and  exclusive  use  and  enjoyment 
during  that  time ;  such  adverse  enjoyment  is  sufficient  to  support 
a  title.2  So  A  built  a  mill  a  mile  from  B's  pond,  and  entered 
upon  a  dam  and  flume,  previously  built  by  C  at  the  outlet  of  the 
pond  to  supply  his  mill  which  formerly  stood  near  the  site  of  A's 
mill ;  and  used  it  eighteen  years.  The  mill  chiefly  depended  on 
the  water  thus  obtained.  Held,  A's  possession  was  adverse ;  that 
there  was  a  presumption  of  notice,  though  the  lands  about  the 
pond  were  wild  lands.^  So  the  facts,  that  a  town  or  city  main- 
tains a  fish-house  and  engine-house  at  the  end  of  a  highway  ad- 
joining the  sea,  and  repairs  a  capsill  resting  on  a  wall  at  the  head 
of  a  dock,  are  evidence  of  disseisin,  at  least  to  the  extent  of  the 
buildings."*  So  actual  possession  or  cultivation  of  part  of  a  tract 
of  land,  use  of  the  unenclosed  portions  as  woodland,  and  pay- 
ment of  taxes  on  the  whole  for  twenty-one  years,  are  circum- 
stances which  constitute  title  to  the  whole.  The  distinction  ia 
made,  that  payment  of  taxes  on  unseated  land  is  an  indicium  of 
ownership,  and,  in  connection  with  actual  possession  and  culti- 
vation, strong  evidence  of  title.  But,  without  possession  or  cul- 
tivation of  part  of  the  tract,  entries  from  time  to  time  to  take 
wood  are  mere  trespasses,  and  confer  no  right,  even  when  accom- 
panied by  payment  of  taxes.*^  So  A,  the  owner  of  three  adjoining 
surveys,  containing  in  all  about  two  hundred  acres,  resided  on  the 
middle  survey,  and  improved  it,  and  exercised  notorious  acts  of 
ownership  —  such  as  cutting  firewood,  saw-logs,  and  other  timber 

1  Morris  v.  Callanan,  105  Mass.  129.  <  Boston  v.  Kiclianlson,  105  Mass.  351. 

-  Iloyt  V.  Carter,  IG  Barb.  212.  ^  Murphy  v.  Springer,  1  Grant,  73. 

3  I'errin  v.  Garfield,  37  Verm.  304. 

12 


178  DISSEISIN,   EJECTMENT,    REAL   ACTION,  [BOOK   II. 

—  over  the  other  surveys,  for  twenty-one  years,  using  the  whole 
as  one  farm.  Most  of  the  land  was  covered  by  a  warrant  and 
survey  for  four  hundred  acres,  older  than  A's  surveys  of  the 
woodland  lots ;  but  there  had  been  no  improvement  or  occupancy 
by  the  warrantee,  nor  were  any  taxes  assessed  to  or  paid  by  him, 
for  more  than  twenty-one  years,  but  A  had  paid  them.  Held,  A 
had  acquired  a  title  to  all  three  tracts  as  against  the  warrant  and 
survey  ;  and  a  purchaser  from  him  could  not  set  up  title  under 
such  warant,  in  an  action  against  him  for  the  purchase-money.^ 
So  where  one  has  had  continued  possession  for  more  than  twenty 
years,  exercising  acts  of  ownership,  as  by  clearing,  &c.  ;  he  will 
be  presumed  to  have  had  a  conveyance,  so  as  to  enable  him  to 
maintain  ejectment  against  a  stranger  who  enters,  though  the 
former  has  not  had  iwssessio  'pedis  of  the  particular  part  of  the 
tract  occupied  by  the  latter.^  So  residence,  though  necessary 
to  constitute  a  settlement,  is  not  necessary  to  adverse  possession. 
The  latter  may  be  by  cultivation  and  enclosure,  by  cultivation 
without  enclosure,  or  by  enclosure  without  cultivation  ;  and,  in 
every  case,  without  regard  to  the  design  of  the  occupant,  further 
than  that  it  be  to  resist  an  entry  by  any  one  else.  But  when 
adverse  possession  is  claimed  by  enclosure,  it  is  requisite  for  the 
occupant  to  keep  up  the  fences  or  building,  and  prevent  the 
place  from  being  turned  into  common.  An  intention  to  resume 
a  suspended  intrusion,  of  which  the  legal  owner  of  the  title 
may  know  nothing,  falls  short  of  the  requirement  of  the  statute. 
It  is  not  what  the  outgoing  occupant  intended,  but  what  he 
did,  which  determines  the  question  of  abandonment  of  posses- 
sion.'^ (a) 

§  69.  As  appears  from  what  has  been  said,  the  doctrine  of  con- 

1  Baker  v.  Findley,  20  Penn.  163.  »  Stephens  v.  Leach,  19  Penn.  262. 

'i  Smith  V.  Bryan,  Busb.  180. 

(a)  Personal  residence,  though  an  act  Polack  v.  McGrath,  32  Cal.  15.     Where 

of  possession,  is  not  essential  to  it.     Bar-  a  plaintiff  has  failed  to  establish  a  paper 

stow  V.  Newman,  31:  Cal.  'JO.     A  plaintiif  title,  he   must   show   a   prior   possession. 

in  ejectment,  to  recover  on  the  ground  of  This  must  be  so  clearly  defined,  as  to  give 

prior  possession,  must  show  that  it  was  him   exclusive   dominion,  —  not   a  mere 

an  actual  one,  and  that  the  enclosure  relied  scmmhlhuj  possession.     Where  the  plain- 

upon  was  substantial ;  such  as  a  prudent  tiff  enclosed  land  on  which  the  defendant 

farmer  would  erect  to  protect  his  growing  was  residing,  and  tlie  defendant  removed 

crops.     Tiie   enclosure   of  a   lot   in    San  his  residence  from  witliin  the  enclosure, 

Francisco,  by  building  an  ordinary  fence  but  continued  to  pastui'e  his  cattle  there, 

around  it,  without  residence  thereon,  or  and  would  not  permit  the  plaintiff  to  use 

improvements  or  cultivation  or  other  acts  it  for    pasturage  ;  held,  the   plaintiff  did 

of  ownership,  is  not  sufficient,  under  the  not  have  "  possession."     Page  v.  O'Brien, 

Van  Ness   ordinance,  to   pass   the   title.  36  Cal.  559. 


BOOK   II.]  TITLE,   ADVERSE   POSSESSION.  179 

structive  possession  most  frequently  comes  in  question  in  con- 
nection with  tlie  claim  of  title  to  the  lohole  of  certain  premises,  of 
which  the  claimant  actually  occupies  or  improves  only  a  part.^ 
Upon  this  subject,  it  is  a  familiar  distinction,  though  not  of  uni- 
versal application,  that  part  possession  of  land  claimed  under,  and 
included  within,  the  terms  of  a  deed  or  other  writing,  gives  title 
to  the  whole,  being  under  color  of  title  ;  while  a  title  resting  on 
possession  alone  is  confined  within  the  limits  of  actual  occupancy  .^ 
Thus  entry  and  possession  for  twenty  years  of  the  improved  por- 
tion of  land,  under  a  conveyance  in  fee  of  the  whole,  is  posses- 
sion of  the  whole,  if  there  is  no  adverse  possession.^ 

§  70.  But  while  a  party,  entering  and  claiming  title  bond  fide, 
acquires  in  law  actual  possession  to  the  extent  of  the  boundaries 
contained  in  his  title,  whether  valid  or  not ;  the  possession  of  a 
wrong-doer  does  not  extend  beyond  actual  enclosure.*  And 
there  cannot  be  adverse  possession,  without  an  actual  possession 
of  the  locus  in  quo,  or  of  some  part  of  a  legal  subdivision  of  which 
it  formed  a  part.^  So  the  constructive  possession  of  one  claiming 
under  adverse  possession  will  not  be  extended  beyond  the  tract 
or  tracts  of  usual  and  ordinary  dimensions,  actually  marked  out, 
and  severally  entered  upon  and  possessed,  by  the  claimant.^  And 
possession  of  two  tracts,  adjacent  to  the  one  in  controversy,  for 
seven  years,  with  color  of  title,  though  all  conveyed  in  one  deed, 
by  separate  and  distinct  descriptions,  is  not  a  possession  of  the 
land  in  question,  and  will  not  amount  to  a  bar  under  the  Statute 
of  Limitations.'^  So  the  fact,  that  a  party  had  cattle  on  the  land, 
or  was  there  for  short  periods  himself,  or  that  he  claimed  within 
given  limits,  is,  in  the  absence  of  any  enclosure  or  visible  signs 
of  the  extent  of  his  claim,  insufficient  to  show  possession  of  any 
particular  tract,  when  others  were  also  in  possession.^  (a) 

1  See  Evans  v.  Corley,  4  Rich.  315 ;  »  Fairman  ;•.  Beal,  14  III.  244. 
Brown  v.  Roberts,  1  Neva.  402;  Banihurt  ^  Iloye  v.  Swan,  5  Md.  237. 

V.  Petit,  22  Penn.  135.  5  Slii'pman  v.  Baxter,  21  Ala.  456. 

2  Ayres  v.  Bensley,  32  Cal.  620 ;  Roy-  «  Hole  v.  Rittenhouse,  19  Penn.  305. 
all  V.  Lisle,  15  Geo.  545  ;  Swift  c.  Gaj^e,  26  ^  Loftin  v.  Cobb,  1  Jones,  406. 
Verm.  224 ;  Turney  v.  Chamberlain,  15  ^  Wilson  v.  Corbier,  13  Cal.  166. 
111.  271. 

(a)  Tlie  rule,  that  actual  occupancy  of  he  enters,  is  not  limited  to  small  tracts  of 

a  part  of  the  land  described  in  the  deed  land,  such   as   are    usually   occupied   for 

luider  which  the  occupant  claims,  draws  farms.     Ilicks  v.  Coleman,  25  Cal.  122. 
after  it   the   possession  of  the  wliole,  if         Although  the  deed  or  title  may  turn 

there  is  no  adverse  possession  at  the  time  out  to  be  defective  or  void,  yet  the  true 


180 


DISSEISIN,   EJECTMENT,   REAL    ACTION. 


[book  it. 


§  71.  As  has  been  already  stated,  possession  is  but  primd  facie 
evidence  of  title.^  Thus  the  possession  of  the  defendant  is  a  good 
defence,  until  a  better  title  is  shown.^  But  where  the  line  con- 
tended for  by  the  defendant  is  clearly  shown  to  be  erroneous;  no 
acquiescence  by  the  plaintiff,  short  of  twenty  years,  will  bar  a 
recovery  according  to  the  true  line,  unless  there  be  an  estoppel  in 
pais.^  If  the  plaintiff  relies  upon  possession,  the  defendant  may 
set  up  a  bond  fide  possession  of  his  own,  and  title  for  a  third  per- 
son, or  the  transfer,  by  the  plaintiff,  of  a  bond  for  title  to  a  third 
person.  Though  it  is  otherwise,  where  the  defendant  is  a  mere 
trespasser.^  In  other  words,  where  nothing  but  possession  is 
shown  by  either  party,  priority  of  possession  sustains  the  action. 
But  the  presumption  of  title  may  be  rebutted  by  proof  of  title  in 
a  third  person.^  As  between  two  possessions,  the  first  will  pre- 
vail.^ 

§  72.  In  an  action  for  a  portion  of  a  tract  of  land,  both  parties 
relying  on  possession,  and  the  defendant  proving  a  prior  posses- 
sion by  actual  enclosure  of  the  whole  tract ;  the  defendant's 
possession  may  be  valid,  though  not  in  conformity  with  the  pre- 
emption laws  of  the  United  States,  or  the  possessory  laws  of  the 
State,' 


416. 


1  See  Tucker  v.  Phillips,  2  Met.  Ky.  5  Brewster  v.  Striker,  1  E.  D.  Smith, 


■^  Hipp  V.  Forester,  7  Jones,  599. 
3  Eiiierick  v.  Kohler,  29  Barb.  165. 
*  Jones  V.  Scoggins,  11  Geo.  119. 


321. 


s  Potter  V.  I&iowles,  5  Cal.  87. 
-•  Bradshaw  v.  Treat,  6  Cal.  172. 


owner  will  be  disseised  to  the  extent  of 
the  boundaries  of  such  deed  or  title.  Hays 
V.  Barrera.  26  Tex.  78. 

In  North  Carolina,  seven  years'  actual 
possession,  of  a  part  of  a  lappage  by  the 
claimant  of  the  junior  title,  confers  on  him 
a  valid  title  to  the  whole,  if  the  claimant 
under  the  elder  title  had  no  actual  posses- 
sion. Kerr  v.  Elliott,  Phill.  (N.  C.)  L. 
601. 

A  located  certain  land,  staking  the 
whole  of  it,  and  building  a  house,  and  re- 
siding thereon,  until  he  sold  to  B,  who 
fenced  it  and  erected  a  dwelling-house  on 
it.  After  such  sale,  and  the  erection  of 
the  fence  and  dwelling-house,  C,  who  had 
previously  erected  a  toll-house  on  the 
premises,  and  used  it  as  such,  with  the 
permission  of  the  locator,  claimed  and  en- 
closed a  ])ortion  of  the  premises.  Held, 
C  was  only  entitled  to  the  toll-house  and 
ground  necessarily  connected  therewith. 
Brown  v.  Koberts,  1  Nev.  402. 


A.  having  entered  upon  Thompson  and 
Meserve's  jiurchase,  the  plaintiff's  grantor 
obtained  from  him  color  of  title,  entered 
upon  tlie  summit  of  Mt.  Washington,  and 
conveyed  the  purchase  to  the  plaintiff; 
but  the  plaintiff  had  never  been  in  posses- 
sion of  the  summit,  nor  was  there  any 
evidence  that  the  purcliase  included  it. 
Held,  the  plaintiff  could  not  maintain  an 
action  for  the  summit.  Wells  v.  Jackson, 
48  N.  H.  491. 

The  holder  of  a  small,  isolated  parcel 
of  land,  within  a  tract  of  300  acres,  which 
was  bounded  by  marked  trees,  tliere  being 
no  evidence  to  connect  the  smaller  parcel 
with  the  boundaries  of  the  including  tract, 
shows  no  prima  facie  title  to  the  land  under 
the  (N.  C.)  Act  of  1850,  which  requires 
the  holding  or  claiming  under  "  visible 
metes  and  bounds  "  for  five  years  to  es- 
tablish such  prima  facie  title.  Ivron  v. 
Cagle,  1  Wins.  (N.  C.)  No.  1,  118. 


BOOK   II.] 


TITLE,    ADVERSE   POSSESSION. 


181 


§  73.  Actual  enclosure,  in  cases  of  mixed  possession,  is  neces- 
sary to  defeat  the  title  of  the  real  owner.  It  makes  no  difference 
between  him  and  the  wrong-doer,  whether  he  is  in  actual  posses- 
sion of  any  part  of  the  land  or  not  ;  for,  in  either  case,  tlie  title 
by  possession  holds  only  to  the  extent  of  actual  enclosure.^ 

§  74.  In  reference  to  the  possession  of  tlie  defendant,  the  plain- 
tiff may  recover  upon  his  prior  possession,  against  one  in  posses- 
sion without  chiim  of  title,  if  only  abandoned  animo  revertendiP-  (a) 
And  the  law  is  the  same  as  against  a  wrong-doer,  claiming  title 
by  possession  alone,  whether  the  real  owner  be  in  actual  pos- 
session of  any  of  the  land  or  not.^  But,  as  lias  been  already 
suggested,  ejectment  lies  only  against  one  who  has  or  has  had 
possession,^  (6)  or  received  the  rents  and  profits,  since  the  plaintiff 


*  Armstrong  v.  Risteau,  5  Md.  256. 

'^  Jones  V.  Xiinn,  12  Geo.  469. 

s  Iio3'e  I'.  Swan,  5  Md.  287. 

4  lilink  f.  Cohen,  13  Cal.  623 ;  18  Barb. 

(a)  Tlie  return  of  tlie  sheriff  is  merely 
prima  facit  evidence  of  the  defendant's 
possession.  But  the  question  is  for  the 
jury,  except  upon  a  manifestly  ve.xatious 
joinder  of  defendants  for  the  purpose  of 
preventing  them  from  testifying.  Helfen- 
stein  V.  Leonard,  50  Penn.  401. 

(6)  The  point  referred  to  in  the  te.xt 
sonietimes  turns  upon  tlie  naturt  of  tlie 
projieiiii,  out  of  the  claim  for  whicli  the 
controversy  arises.  Whether  plaintiff  or 
defendant  may  rely  upon  a  mere  casement, 
is  a  question  not  very  definitely  settled. 
See  Tracy  v.  Atherton,  36  Verm.  508. 

In  a  very  late  case,  it  is  lield  tliat  eject- 
ment does  not  lie  for  an  easement  or  right 
of  way,  and  no  ainendnieiit  is  allowable. 
Sniitii  i:  Wiggin,  48  X.  II.  105. 

On  the  otiier  liand,  ejectment  lies  to 
recover  jiossession  of  land,  subject  to  ei- 
ther a  private  or  public  easement.  Till- 
mes  r.  Marsh,  67  Tenn.  507  ;  Goodtitle  v. 
Alker,  1  Barb.  183. 

It  is  iield,  that,  where  the  plaintifl'  lias 
the  riglit  of  ininliuj  on  the  land,  he  can 
maintain  ejectment  for  the  land  against  an 
intruder.     Turner  v.  Reynolds,  23  I'enn. 

lyj. 

If  A's  building  inclines  from  tlie  per- 
pendicular over  B's  land,  B  may  have 
ejectment  for  the  land  over  whicli  it  im- 
pends.    Sherry  v.  Frecking,  4  Duer,  452. 

The  owner  of  the  fee  may  maintain 
ejectment  against  one  who  has  exclusively 
approjiviated  a  part  of  a  public  street  or 
highway.  Brown  r.  Galley,  Hill  >.^  Denio, 
308.  Or  to  establish  his  title  atrainst  the 
owner  of  a  perpetual  right  to  use  it  for  a 


526  ;  Scisson  v.  M'Lanes,  12  Geo.  166 ; 
Daniel  v.  Le  Fevre,  19  Ark.  201 ;  Cochran 
V.  Whitesides,  34  Mis.  417. 


passage-way.  Morgan  v.  Moore,  3  Gray, 
819. 

Or  against  an  individual  who  appro- 
priates to  his  own  use  a  portion  of  the 
highway.     Wright  v.  Carter,  3  Dutch.  76. 

In  an  action  of  ejectment  (in  Califor- 
nia), evidence  is  inadmissible  to  show 
that  the  fee  of  the  land  is  in  the  govern- 
ment of  the  United  States,  or  that  the  title 
is  in  a  third  party.  Wiiians  c.  Christy,  4 
Cal.  70.  But,  on  the  other  hand,  ejectment 
is  held  not  to  lie  to  try  title  to  a  road 
or  way.     Wood  v.  Truckee,  24  Cal.  487. 

Or,  in  general,  against  one  claiming 
merely  an  easement.  Child  v.  Chajipeli, 
5  Seld.  246.  As  in  the  case  of  the  projec- 
tion of  eaves  or  gutters.  Aikin  r.  Bene- 
dict, 89  Barb.  400.  Or  flowage.  Wilklow 
V.  Lane,  37  Barb.  244. 

The  easement  of  drainage  is  held  no 
defence.  Commonwealth  v.  Roxbury,  9 
Gray,  451.  The  owner  in  fee,  of  land 
taken  by  a  railroad  under  the  right  of 
eminent  domain,  may  recover  the  land, 
with  damages  or  mesne  profits,  for  an 
unauthorized  use  of  it,  from  the  corpora- 
tion, although  i\\ey  attempt  to  set  up  the 
misapjiropiiation  as  a  forfeiture  of  their 
franchise.  Proprs.,  &c.  v.  Nashua,  i5tc.  104 
.Mass.  1. 

"  Road  "  is  a  term  synonymous  with 
"  way,"  an  incorporeal  jiereditament,  and 
ejectment  will  not  lie  to  try  title  to  it. 
An  execution  purchaser  of  a  turnpike 
cannot  maintain  ejectment  for  possession. 
Wood  r.  Truckee,  24  Cal.  474. 

Ejectment  may  be  niaintaiiu-d  by  tlie 
owner  of  laud  used  as  a  highway,  when  it 


182 


DISSEISIN,    EJECTMENT,   REAL   ACTION. 


[book  II. 


acquired  a  title.^     In  order  to  render  the  possession  of  a  defend- 
ant adverse,  he  must  have  entered  in  good  faith,  beHeving  he  had 
a  title ;  his  possession  must  be  undercolor  and  claim  of  title.^  (a) 
§  75.  A  party  may  claim  by  the  adverse  possession  not  only  of 


1  Van  Home  v.  Everson,  13  Barb. 
526. 

has  been  taken  by  a  railroad.  Lozier  v. 
New  York,  42  Barb.  465 ;  Weisbrod  v. 
Chicao-o,  21  Wis.  602. 

Ejectment  by  a  city  will  lie  for  land 
dedicated  as  a  public  square,  when  the 
defendant  has  and  claims  exclusive  pos- 
session.    Winona  v.  Huif,  11  Minn.  119. 

Ejectment  lies  for  land,  a  part  of  wliich 
is  a  passa<:ce-way  of  the  defendant.  Blake 
V.  Ham,  50  Maine,  311  ;  .53  Maine,  430. 

If  one  owning  a  right  of  way  in  com- 
mon with  the  owner  of  the  fee  stops  up 
the  way,  and  appropriates  it  exclusively 
to  his  own  use,  the  latter  may  recover 
possession  by  an  action  of  ejectment,  but 
the  recovery  will  not  interfere  with  the 
defendant's  right  to  use  the  way  according 
to  his  title.  Gordon  v.  Sizer,  39  Miss. 
305. 

A  right  to  take  all  the  oil  that  may  be 
found  in  a  tract  of  land  is  not  a  corporeal 
right,  for  which  ejectment  will  lie.  l^ark 
V.  Johnston,  55  Penn.  St.  164. 

The  lien  given  by  the  (Min.)  Act  of 
March  3,  1864,  "  to  protect  purchasers  of 
real  estate  at  executor's,  administrator's, 
or  guardian's  sales,"  is  no  defence  to  an 
action  of  ejectment.  The  possession  may 
be  surrendered,  and  the  lien  remain.  Mon- 
tour V.  Purdy,  11  Minn.  384. 

A  question  of  a  different  character,  in 
reference  to  the  nature  of  the  propeiii/,  arose 
in  a  late  case  in  New  York.  It  was  there 
held  tliat,  upon  the  destruction  of  build- 
ings, of  which  demised  premises  are  a  part, 
the  right  of  entry  is  gone,  because  the  in- 
terest of  the  lessee  is  not  tangible  or  vis- 
ible, and  the  delivery  of  possession  by  the 
sheriff,  upon  a  writ  o^  habere  facias,  woiild 
be  impossible.  The  true  test  of  the  action 
of  ejectment  seems  to  be,  that  the  thing 
claimed  should  be  a  corporeal  heredita- 
ment, that  a  right  of  entry  should  exist  at 
the  commencement  of  the  action,  and  that 
the  interest  be  visible  and  tangible,  so  that 
the  sheriff  may  deliver  possession.  Lease 
of  a  room  on  the  first  floor  and  south- 
wardly end  of  a  building  in  Brooklyn,  be- 
ing eighty  feet  on  one  street,  and  fifty  on 
another,  with  the  cellar,  and  also  a  lot  in 
the  rear,  of  like  dimensions.  The  lessor 
covenanted  to  make  all  the  necessary  re- 
pairs, and  reserved  the  right  to  reenter  at 
all  times  for  that  purpose.  The  lessee 
used  the  premises  as  a  stable.     The  build- 


2  Moore  v.  Worley,  24  Ind.  81. 


ing  having  become  dangerous,  the  lessor 
was  compelled  by  the  competent  author- 
ity to  repair  it ;  and  in  so  doing  took 
down  and  rebuilt  the  front  and  rear  walls 
upon  the  same  foundation.  The  size  of 
tlie  Iniilding  was  not  altered,  but  its  inte- 
rior arrangements  were,  and  kitchens  were 
finislied  off  in  the  basement.  Ejectment 
having  been  brought  by  the  lessee  ;  held, 
the  demised  premises  could  be  identified, 
that  they  remained  substantially  tliesame, 
and  what  was  done  by  the  lessor  must  be 
regarded  as  done  in  execution  and  per- 
formance of  the  covenants.  Also,  that  the 
lessee  took  an  interest  in  the  land  in  the 
rear,  of  which  he  could  not  be  divested, 
against  his  will,  by  any  thing  done  to  the 
building  itself;  and  had  a  riglit  to  recover 
to  that  extent.  Rowan  v.  Kelsey,  18  Barb. 
484. 

(n)  AVhere  the  defendant  has  been  in 
possession  before  and  after  suit  brought, 
the  plaintiff  need  not  show  his  possession 
on  that  day.     Doe  v.  Roe,  30  Geo.  553. 

Service  of  the  writ  is  prima  facie  evi- 
dence of  the  defendant's  possession.  Kirk- 
land  V.  Thompson,  51  Penn.  216. 

Ejectment  cannot  be  maintained  against 
a  mere  trespasser,  on  the  ground  of  pos- 
session alone,  imless  it  has  continued 
twenty  years.  Doe  d.  Jefferson  v.  Howell, 
1  Houst.  178. 

On  a  motion  to  quash  a  summons,  on 
the  ground  that  the  defendant  at  the  com- 
mencement of  suit  was  not  and  never 
had  been  in  possession  ;  held,  tlie  plaintiff 
might  take  a  judgment  for  possession,  but 
without  costs.  Derrickson  v.  White,  3 
Vroom,  137. 

In  ejectment,  when  the  bill  of  excep- 
tions purports  to  set  out  all  the  evidence  ; 
if  there  is  no  proof  that  the  defendant  was 
in  possession  at  the  date  of  the  writ,  a 
general  charge,  that,  "  if  the  jury  believe 
the  evidence,  they  must  find  for  the  plain- 
tiff," is  erroneous.  Costly  v.  Tarver,  38 
Ala.  107. 

On  the  trial  of  an  action  of  ejectment, 
a  judgment  for  the  defendant,  in  an  action 
of  forcible  entry  and  detainer,  brought  by 
a  tenant  of  the  plaintift'against  the  defend- 
ant, is  not  admissible  to  show  actual  pos- 
session in  the  defendant  at  tlint  time, 
althougli  that  suit  was  conducted,  and 
expenses  paid,  by  tiie  landlord.     The  pay- 


BOOK   II.] 


TITLE,   ADVERSE   POSSESSION. 


183 


himself,  but  of  others  to  whose  title  he  succeeds.  And  a  contin- 
uous successive  occupation  may  be  relied  upon  under  deeds, 
altliongli  the  land  have  been  omitted  by  mistake.^  But  where 
different  persons  enter  upon  land  in  succession,  without  title  or 
privity  of  estate  with  the  preceding  occupant,  —  as  in  case  of 
heir,  grantee,  ctc.,^  —  the  last  possessor  cannot  add  the  possession 
of  his  predecessors  to  his  own,  so  as  to  make  out  continuity  of  pos- 
session sufficient  to  bar  the  entry  of  the  owner.  The  possession  of 
one  cannot  be  tlie  possession  of  tlie  other.  So  possession  of  a  part 
of  the  hmd,  by  a  party  entitled  to  the  whole,  is  possession  of  the 
whole,  and  he  cannot  be  barred  by  adding  together  the  different 
possessions  and  acts  of  the  defendant,  at  long  intervals,  so  as  to 
make  out  twenty  years.^  And  where  one  has  such  possession  as 
is  insufficient  to  give  an  adverse  title,  and  another  succeeds  him, 
holding  the  land  in  the  same  manner ;  the  imperfect  possession  of 
the  former,  when  united  to  that  of  the  latter,  cannot  make  it  ad- 
verse, continuous,  and  exclusive,  as  against  the  real  owner."* 

§  76.  In  determining  whether  a  possession  has  been  adverse, 
the  point  of  Tio^ite  often  becomes  material,  (a)    Thus,  in  an  action 


1  Smith  V.  Chapin,  31  Conn.  530. 

2  M'Entire  v.  Brown,  28  Ind.  847. 

ment  of  taxes  assessed  on  the  premises, 
by  the  (lefeiidant,  is  not  evidence  of  pos- 
session and  claim  of  title  on  his  part,  or  of 
abandonment  or  disclaimer  on  the  part  of 
the  piaintitl".  Davis  r.  Terley,  30  Cal. 
630. 

(n)  It  is  sometimes  held,  that,  to  main- 
tain ejectment,  notice  is  not  necessary, 
unless  the  defendant  was  a  tenant  of  the 
jilamtifi'.  Eaton  v.  (ieorge,  3  Jones,  3b5. 
Tiiere  must  have  been  a  disseisin  of  the 
plaiiititf,  as  well  as  a  wrongful  possession 
Ijy  the  defendant.     After  the  jjlaintitf  has 


'  Armstrong  v.  Risteau,  5  Md.  2uG. 
*  Hoye  V.  Swan,  5  Md.  237. 

the  purchaser,  without  notice  to  quit. 
Dean  v.  Comstock,  32  111.  173  ;  47  Barb. 
173. 

No  demand  of  the  amount  due,  or  of 
the  possession,  or  tender  of  a  deed,  is 
necessary.  Hotaling  v.  Hotaling,  47  Barb. 
103. 

Twenty-five  days'  notice  to  quit  is  a 
reasonable  one  to  end  the  occujjancy  of 
a  vendee  who  has  entered  upon  the  land 
under  a  mere  contract  of  jturchase,  such 
vendee  being  only  an  occui)ant  at  will. 
The  payment  of  the  greater  part  of  the 


acquiesced  in  the  occupancy,  to  render  it     purchase-money  does  not  impair  the  right 


wrongful  and  an  ouster,  there  must  be  a 
demand  of  possession,  or  a  re(iuest  to  quit 
in  a  reasonable  time.  Chamberlin  v. 
Donahue,  41  Vt.  806. 

AVhere  no  rent  had  been  paid  for  twenty 
years  before  the  bringing  of  ejectment,  it 
will  bei)resumed  that  the  relation  of  land- 
lord and  tenant  had  ceased,  and  notice  to 
quit  need  not  be  proved.  Den  v.  Lloyd, 
2  Vroom,  395. 

The  (N.  Y.)  statute,  dispensing  with  a 
demand  of  rent  and  formal  re-entry  before 
bringing  ejectment,  is  aj)plicable  to  leases 
in  fee.     Hosford  v.  Ballard,  3',)  N.  Y.  147. 

When  a  vendor  elects  to  treat  the  con- 
tractas  rcscindcil,  for  non-compliance  witli 
the  terms,  he  may  bring  ejectment  against 


of  the  vendor  to  maintain  ejectment. 
Butner  r.  Chaffin,  I'lnll.  (N.  C.)  L.  4'J7. 
An  owner  of  land  may,  without  notice  or 
demand,  maintain  ejectment  against  an 
oecujjant  to  whom  a  ])revious  occui)ant 
has  without  authority  transferred  posses- 
sion. Young  V  Perry,  rhill.  (N.  C.)  L. 
54'.). 

Ejectment  will  lie  against  tlie  grantor 
with  warranty  by  the  grantee,  without 
any  demand  of  possession  or  notice  to  (juit. 
Dodge  r.  Walley.  22  Cal.  224.  A  defend- 
ant in  ejectment  cannot  set  up  incon.-iistent 
defences ;  that  he  is  in  by  deed  aiisolute, 
by  a  contract  for  a  conveyance,  and  by 
license,  requiring  a  notice  to  quit.  Blum 
V.  Robertson,  24  Cal. 127. 


184  DISSEISIN,   EJECTMENT,   KEAL   ACTION.  [BOOK   II. 

of  ejectment,  it  was  proved  that  tlie  plaintiff  and  defendant,  who 
were  adjoining  proprietors  of  land,  each  claiming  to  own  the 
premises  in  controversy,  had  each  occasionally  occupied  beyond 
his  own  line,  and  that  the  defendant  had  given  the  plaintiff  a 
written  notice  not  to  trespass  upon  his  land,  claiming,  in  it,  to 
own  all  the  land  north  of  a  certain  line  mentioned  therein.  The 
plaintiff  claimed  to  have  proved  an  ouster  by  the  defendant,  and 
the  court  submitted  such  notice,  in  connection  with  evidence  of 
the  acts  of  the  parties,  to  the  jury,  instructing  them  that  an  ouster 
was  not  constituted  by  mere  words,  but  that  the  notice  might 
serve  to  give  a  construction  to  such  acts  as  the  defendant  had 
committed  upon  the  land  beyond  his  line  ;  and  directing  them  to 
find  whether  said  notice,  in  connection  with  the  acts  proved,  was, 
or  was  not,  sufficient  evidence  of  such  ouster.  Held,  such  course 
was  correct. 1 

§  77.  Where  the  defendant  acquires  and  holds  possession  under 
the  plaintiff,  and,  on  suit  brought  after  the  expiration  of  six  years, 
attempts  to  defeat  the  action  by  showing  adverse  possession  ;  the 
character  of  that  possession  must  be  brought  home  to  the  knowl- 
edge of  the  plaintiff,  and  the  jury  are  not  bound  to  infer  such 
knowledge  from  the  fact  that  the  defendant  claimed  the  property 
publicly  and  notoriously  under  an  adverse  title. ^  A  note  given 
for  rent,  reciting  that  the  maker  was  the  tenant  of  the  payee,  and 
had  been  for  ten  years,  is  evidence  to  qualify  and  explain  the 
then  possession,  but  it  cannot  run  back  and  prove  a  tenancy  for 
any  length  of  time.^  So  the  admission  of  a  certain  party,  in  an 
action  of  ejectment,  to  defend  as  landlord,  is  no  evidence  that  he 
who  first  sued  held  as  his  tenant.*  And,  under  Mass.  Rev.  Sts. 
0.  101,  §  7,  a  writ  of  entry  may  be  maintained  against  a  tenant 
at  will  who  refuses  to  surrender  the  premises  on  demand.^ 

§  78.  There  are  some  cases,  where  one  party  is  estopped  or  pre- 
cluded, by  his  peculiar  relation  to  the  other,  from  setting  up  an 
adverse  title  against  the  latter.^  Thus  the  mere  holding  over  of  a 
tenant,  after  his  term  has  expired,  is  not  adverse  to  the  landlord ; 
more  especially  in  case  of  tenancy  at  will,  without  notice  to  quit.'^ 

1  Dikeman  v.  Taylor,  24  Conn.  219.  ^  geg  Potter  v.  Baker,  19  N.  H.  166  ; 

2  Benje  v.  Creagh,  21  Ala.  151.  Worsley  v.  Johnson,  5  Jones,  72;  T      ii 

3  McKay  v.  Glover,  7  Jones,  41.  v.  Abbott,  41  Penn.  852. 

*  Currv  V.  Raymond,  28  Penn.  144.  7  Volkenburgh  f.  Rahway,  &c.,  SZabr. 

5  Dolby  V.  Miller,  2  Gray,  135.  580 ;  Floyd  v.  Mintsey,  7  Rich.  181. 


BOOK    II.]  ESTOPPEL,    ABANDONMENT.  185 

The  holding  is  a  tenancy  by  sufferance.^  So  wliere  the  defendant 
in  ejectment  sets  up  an  adverse  possession,  for  a  period  sufTicient  to 
bar  the  plaintiff's  riglit  of  action ;  such  defence  is  inconsistent  with 
a  tenancy  at  will,  and  he  cannot  therefore  claim  that  he  was  entitled 
to  notice  to  quit  before  the  suit  was  brought.'-^  So  in  an  action  of 
ejectment,  where  the  defendants  acquired  possession  from  the 
tenant  of  the  plaintiff,  with  a  full  knowledge  of  the  tenancy,  they 
cannot  deny  the  plaintiff's  title.^  So  a  defendant  in  ejectment, 
who  became  possessed  under  a  contract  to  purchase,  which  has 
been  rescinded  and  the  jnir chase-money  refunded,  cannot  object  to 
his  vendor's  want  of  title,  nor  set  up  an  outstanding  one."*  So  a 
defendant  in  ejectment  cannot  show  title  out  of  the  plaintiff,  and 
in  a  third  person,  where  the  plaintiff  claims  by  a  genei"al  war- 
ranty deed  from  the  defendant.^  So  if  C,  the  highest  bidder  at 
an  auction,  is  acting  as  agent  for  A,  but,  when  the  payment  is  to 
be  made,  A,  B,  and  C  agree  that  the  deed  shall  be  made  to  B, 
instead  of  A,  and  B  pays  for  the  same  ;  A  cannot  deny  B's  title 
in  a  subsequent  action  against  him  for  the  premises.'^  So  a  sale 
cannot  be  questioned  by  a  cestui  que  trust,  after  receiving  the 
proceeds  of  land  sold  by  the  trustee.'^  But  where  plaintiffs  and 
defendant  claim  under  the  same  lessor ;  a  deed  from  the  defend- 
ant, conveying  the  premises  to  one  of  the  plaintiffs,  in  trust  for  the 
payment  of  a  debt  to  a  third  person,  does  not  operate  as  an  estop- 
pel against  the  plaintilT's  recovery.^  So  it  is  sometimes  held,  that 
a  vendee  may  deny  his  vendor's  title,  and  claim  adversely.'-^  So 
the  plaintiff  was  in  possession,  claiming  under  a  tax-sale.  A  after- 
wards entered,  claiming  to  have  paid  the  tax,  and  to  have  a  receipt 
therefor.  They  then  agreed,  that  A  should  remain  in  possession 
through  the  season,  and,  if  he  did  not  produce  the  receipt,  should 
quit,  which  he  did  in  the  fall,  without  producing  the  receipt. 
Held,  A's  possession  was  not  under  the  plaintiff,  but  an  interrup- 
tion of  the  plaintiff's  possession. ^"^  (a) 

1  Crei.sjh  i\  Heiison,  10  Gratt.  234.  «  Bajrgott  v.  Flemins,  10  Ciisli.  451. 

-  Williams  v.  Cash,  27  Geo.  507.  "^  Joliiison  v.  Bennett,  :J'.)  Harb.  2;!7. 

•'  Anderson  v.  Parker,  6  Cal.  197.  ^  Seabury  v.  Stewart,  22  Ala.  207. 

•*  Walker  v.  Williams,  30  Miss.  165.  »  Cutter  v.  Waddingham,  33  Mis.  209. 

5  Mathews  v.  Lecompte,  24  Mis.  545.  i"  37  Vt.  219. 

(rt)  In  1830,  A  enclosed  about  si.x  acres  whereupon  A  consented  to  give  up  four 

of  waste  land,  and  built  a  cottage  thereon,  acres,  on  being  allowed  to  retain  the  eot- 

and  was  allowed  to  remain  in  possession  tage  and  the  other  (wo  acres  till  his  death, 

witliont  acknowledgment  or  payment  of  A  died  in  18G1.     Held,  the  ])roceedings  in 

rent  till  1845,  when  the  owner  served  him  1845  amounted  to  an  actual  entry,  ternii- 

with  a  declaration  and  notice  in  ejectment;  nated  the   original  tenancy   at  will,  and 


186  DISSEISIN,    EJECTMENT,   REAL   ACTION.  [BOOK   II. 

§  79.  An  adverse  title  may  be  lost  by  voluntary  abandonment. 
Where  one  holding  adversely  abandons  or  quitclaims  the  prem- 
ises, before  his  adverse  possession  gives  him  a  title,  he  is  concluded 
to  the  same  extent  as  if  he  had  been  evicted  by  process  of  law.^ 
Evidence  of  an  outstanding  title  in  bar  of  a  recovery  may  be  re- 
butted by  proof  of  its  relinquishment,  or  that  it  is  not  a  subsist, 
ing  operative  title.^  But  the  act  must  indicate  an  intent  to 
abandon.  Thus  removal  of  a  fence,  to  replace  it  by  a  better  one, 
is  no  abandonment.  And  an  entry,  with  notice,  during  such  re- 
moval, is  not  valid,  as  upon  unenclosed  land.'^ 

§  80.  Where  the  plaintiff  relies  on  his  grantor's  possession  ;  the 
defendant,  in  possession,  may  show  an  abandonment  by  the  grantor 
prior  to  his  grant.* 

§  81.  Abandonment  hy  the  defendant  is  sometimes  relied  upon. 
Thus  no  action  lies  against  a  party  who  has  abandoned  the  land, 
whether  accepted  or  not.  As  where  a  mechanic,  having  posses- 
sion of  a  school-house  for  repairs,  offered  the  key  to  a  trustee.^ 
But  prior  possession,  voluntarily  abandoned  without  purpose  of 
return,  is  no  defence  to  an  action  founded  on  possession.^ 

§  82.  Where  two  parties  both  claim  by  possession,  and  the  prior 
occupant  surrenders  to  the  other,  his  title  is  held  to  be  lost."  But 
a  verbal  surrender,  after  title  acquired  by  adverse  possession,  is 
invalid.^  (a) 

§  83.  Somewhat  in  analogy  with  the  general  doctrine  of  aban- 
donment, evidence  is  admissible,  that  since  the  commencement  of 
suit  the  plaintiff  has  conveyed  the  land  to  the  defendant ;  and 
constitutes  a  good  defence.^  So  if  the  plaintiff  convey  all  his 
interest  in  the  demanded  premises  to  a  third  person,  after  action 
brought,   the   defendant   may  by  proper   plea    avail    himself  of 

1  Poor  V.  Horton,  15  Barb.  485.     See  4  Bird  v.  Lisbros,  9  Cal.  1. 
Wood  V.  M'Guire,  21  Geo.  576  ;   Grant  v.  ^  Allen  v.  Dunlap,  42  Barb.  585. 
Allison,  43  Penn.  427  ;  Altemose  v.  Huf-  ^  Bequette  v.  Caiilfield,  4  Cal.  278. 
smith,  45  Penn.  121 ;  Tayon  v.  Ladew,  33  7  Austin  v.  Bailey,  37  Verm.  219. 
Mis.   205.  8  lb. 

2  Sharp  V.  Johnson,  22  Ark.  79.  9  Torrance  v.  Betsey,  30  Miss.  129.  See 

3  Sweetland  v.  Hill,  9  Cal.  556.  Putnam,  &c.  v.  Fisher,  88  Maine,  824. 

created  a  new  one  ;  and  the  period  of  limi-  (a)  Where  the  strict  letjal  title  is  not  in- 

tation  began  at  that  time.     Locke  v.  Mat-  volved,   and   the   plaintiff  relies    upon  a 

thews,  18  Com.  B.N.  S.  (106  Eng.  C.  L.)  naked    possession,   the    defendant    may, 

753.  under  a  simple  denial  of  possession  or  the 

It  is  held,  that  in  case  of  a  right  by  ad-  right  of  possession,  prove  abandonment 

verse  use  a  license  for  further  use  does  not  before  the  defendant's  entry.     Willson  y. 

defeat  the  title,  but  is  evidence  tliat  the  Clcaveland,  30  Cal.  192 ;  Bell  v.  Brown, 

former  use  was  by  permission.     Perrin  v.  22  Cal.  671. 
Garfield,  37  Verm.  304. 


BOOK   II.] 


PARTIES. 


187 


this  fact  against    the   plaintiff's    right  furthor  to  maintain  the 
suit.^  (a) 


§  84.  In  reference  to  tlie  parties  to  the  action  of  ejectment, 
involving  the  riglits  acquired  by  adverse  possession  ;  it  is  the 
general  rule,  founded  on  obvious  grounds  of  public  policy,  that 
no  title  can  be  gained  by  adverse  possession  against  the  State?-  {IS) 

§  8-4  a.  It  is  the  general  rule,  that  one  cannot  be  a  party,  who 
purchases  tlie  land  after  suit  commenced.^  And  a  title  acquired 
by  the  defendant  pending  the  suit  must  be  set  up  by  an  amended 
answer.^ 

§  85.  A  plaintiff  who  has  no  title  cannot  recover,  though  he 
sue  for  the  use  of  another  who  has  the  title.''     But  a  purchaser 


i  Rowell  V.  Harden,  40  Maine,  582. 
-  Carv  V.  Wliitncy,  48  Maine,  516. 
3  Penn.  v.  Central,  7  Phil.  GG2. 

(n)  In  ejectment  by  the  devisee  of  the 
lessor  atrainst  the  devisee  of  the  lessee, 
where,  alter  its  connnenconient  and  before 
trial,  the  plaintiff  conveys  to  third  per- 
sons all  his  interest ;  the  defendant  cannot, 
under  (X.  Y.)  2  Kev.  Sts.  :]08,  §§  24,  31, 
maintain  that  the  plaintiff's  title  had  ex- 
pired. The  words  "  riirht  or  title  of  a 
plaintiff,"  as  used  in  §  :!!,  refer  to  the 
estate  or  interest  which,  for  the  time  heinf^, 
is  in  the  possession  of  the  plaintiff;  not 
merely  to  the  person  who  is  at  the  time 
the  owner  of  the  estate.  Van  Rensselaer 
V.  Owen,  48  Barb.  01. 

Where  the  jilaintiff  pleads  prior  posses- 
sion, and  the  defendant  claims  and  offers 
evidence  of  an  abandonment,  the  court 
errs  in  excluding  that  evidence  from  the 
jurj',  and  instructinij  them  that  prior  pos- 
session entitles  the  plaintiff  to  a  verdict. 
A  judj^ment,  in  an  action  of  forcible 
entry  and  detainer,  in  favor  of  the  plain- 
tiff, has  no  tendency  to  j)rove  abandon- 
ment by  the  defendant,  in  ejectment 
broufiht  against  the  ]>laintifY  in  the  first 
action  by  the  defendant's  grantees,  or  to 
prove  that  tlie  original  plaintiff  had  taken 
possession  under  color  of  title.  Roberts 
V.  Uiiger,  ;^>t)  (^al.  liTG.  Whore  the  plain- 
tiff relies  on  ]irior  jiossession,  and  the  de- 
fendants attem])t  to  prove  abandonment 
by  the  iilaintitf  before  his  entry,  he  nuiy 
prove  any  facts  or  circumstances  tending 
to  rebut  it.  Willscm  i'.  Cleaveland,  30 
Cal.  192. 

One  in  possession,  accepting  a  deed  from 
an  adverse  claimant,  abandons  his  posses- 
sory title,  and  holds  under  the  deed.  Croan 
V.  Joyce,  3  Bush,  454. 


4  Reily  v.  Lancaster,  39  Cal.  354. 
*  Brooking  r.  Dearmond,  27  Geo.  58. 


In  ejectment  against  a  tenant  holding 
over,  it  is  a  good  defence,  that  the  land- 
lord's title  has  passeil  out  of  his  hands 
since  the  beginning  of  the  term  ;  but  not  to 
set  up  a  tax  title  thus  acquired  by  a  third 
party.     Chase  r.  Dearborn,  21  Wis.  57. 

A  conveyance  by  the  demandant  to  A, 
after  verdict,  but  before  judgment,  is  no 
bar  to  a  judntnent  in  review.  Berry  v. 
AVhitaker,  -58  Maine,  422. 

[h)  But,  in  New  York,  where  a  tenant 
is  in  possession,  the  fair  presumption  is, 
that  the  possession  is  legal,  and.  until  the 
plaintiffs  show  that  they  have  had  some 
right  to  the  possession  within  forty  years, 
the  tenant  sliall  have  the  benefit  of  that 
presum])tion,  and  shall  not  be  dispossessed. 
Thus  where,  in  an  action  by  the  people  to 
recover  real  estate,  the  answer  averred, 
that  no  title  accrued  to  the  people  within 
forty  years,  and  that  the  defendants  ac- 
quired title  in  178('i,  and  had  had  posses- 
sion ever  since  :  held,  the  plaintiffs  must 
show  title  in  themselves,  or  a  vacant  ]ios- 
session  ;  that  they  could  not  maintain  their 
action  on  the  ground  that  they  are  pre- 
siunptive  owners  of  all  land  until  title  in 
another  is  shown,  and  that  in  ejectment  the 
jieopU'  need  not  therefore  show  title  in  the 
first  instance.  People  v.  Trinity  Church, 
30  Barb.  537. 

As  §  I'.t,  of  (111.)  Rev.  Sts.  "  Ejectment," 
merely  requires  that  the  plaintiff  have  a 
right  of  possession  "at  tlie  time  of  the 
commencement  of  the  suit,"  the  jilainliff 
may,  pending  suit,  convey  his  title,  and 
the  recovery  will  inure  to  the  benefit  of 
the  grantee.     Mills  r.  Graves,  44  111.  50. 


188  DISSEISIN,    EJECTMENT,    REAL   ACTION.  [BOOK   II. 

has  sometimes  a  right  to  use  the  name  of  his  bargainer  in  eject- 
ment.^ And  although  a  deed  is  void,  if  made  by  one  disseised,  it 
is  held  that  the  grantee  may  recover  the  land  in  the  grantor's 
name.^  (a) 

§  86.  A  petitioner  in  insolvency  may  maintain  an  action  to  re- 
cover a  homestead.^  So  an  insolvent  debtor,  who  has  commenced 
a  real  action  before  his  insolvency,  and  afterwards  purchased  the 
land  from  his  assignee,  and  taken  a  deed  thereof,  may  prosecute 
to  final  judgment  in  his  own  name,  if  no  plea  in  abatement  has 
been  filed.* 

§  87.  Succeeding  trustees  may  be  substituted  in  ejectment  for 
those  by  whom  the  suit  was  brought,  and  the  omission  of  one 
or  more  may  be  supplied  by  adding  them  at  any  time  before 
trial. ^ 

§  88.  Proof  of  title  in  the  demandant's  ancestors  is  sufficient 
to  sustain  a  verdict  in  his  favor  in  a  writ  of  entry,  if  there  has 
been  no  subsequent  adverse  possession.^  And  if  the  ancestor  die 
in  adverse  possession,  and  the  heirs  remain  in  possession,  this  is 
primd  facie  sufficient  to  entitle  them  to  recover.'''  So  occupation 
under  a  disseisor  is  presumed  to  continue  under  his  heirs.^  !Sut 
heirs  of  a  patentee  of  land,  forfeited  for  non-payment  of  taxes, 
and  never  redeemed,  have  no  title  on  which  they  can  maintain 
ejectment.^ 

§  89.  A  statement  in  ejectment,  that  upon  the  death  of  A  B 
the  title  to  the  premises  descended  to  C,  as  sole  heir-at-law, 
is  a  substantial  allegation  that  C  is  the  sole  heir-at-law  of 
A  B.io  (b~) 

1  Hassell  w.  Walker,  5  Jones,  270.  ■?  Hanna  v.  Kenfro,  32  Miss.  125. 

2  Thompson  v.  Richards,  19  Geo.  594.  §  Currier  v.  Gale,  9  Allen,  522.     See 
8  Moore  v.  Morrow,  28  Cal.  551.                Peele  v.  Chever,  8  Allen,  89. 

*  Gerrish  v.  Gary,  1  Allen,  213.  9  Usher  v.  Pride,  15  Graft.  190. 

5  Dillon  V.  Dougherty,  2  Grant,  99.  l'^  St.  John  v.  Northrup,  23  Barb.  25. 

6  Osgood  V.  Coates,  1  Allen,  77. 

{a)  See,  as  to  the  practice  in  England,  made  no  conveyance,  are  necessary  parties 

by  which. a  third  party  is  allowed  to  de-  to  a  proceeding,  in  which  the  administra- 

fend  ;  Thompson  r.  Tomkinson,  33  Eng.  tor  seeks  by  attachment  to  sell  the  land  to 

L  &   Eq.  487  ;    Croft  v.    Lumley,  29  lb.  pay  the   purchase-money.      Anderson  v. 

78  ;  Whitworth  v.  Humphries,  5  H.  &  N.  Sutton,  2  Duv.  480. 

185.     Where  a  lot  of  land  was  drawn  by,  AplaintifFinejectment,  claiming  as  next 

and  granted  to  H.'s  orphans,  and  the  grant  of  kin  to  the  last  owner,  must  prove  the 

was  put  in  evidence,  and  there  was  a  de-  death  of  all  other  relatives,  who,  if  living, 

mise  in   the    plaintiff's  declaration    from  would    inherit    before    him.     Elwood  v. 

them  ;  the  plaintiff  is  entitled  to  a  verdict,  Lannon's,  27  Md.  200. 

there  being  no   adverse    title   relied  on.  Where   tliere  were  two   counts    in  an 

Doe  V.  Roe,  30  Geo.  553.  action   of  ejectment  on   the   demises   of 

(b)  The  heirs  of  the  vendor,  who  has  several  heirs,  and  a  general  verdict  for 


BOOK    II.]  PARTIES.  189 

§  90.  An  action  of  ejectment  was  commenced  in  1821,  in  the 
name  of  W.  C.  In  1844,  the  defendant  pleaded  tlie  deatliof  the 
plaintiff  before  impetration  of  the  writ.  In  1845,  the  death  of 
the  plaintiff  was  suggested,  and  ''  W.  C,  executor,"  substituted. 
It  appeared,  that  W.  C.  had  title  in  1817  ;  that  in  that  year  he 
died,  and  his  will  was  proved,  whereby  he  devised  to  his  son,  of 
the  same  name.  Held,  upon  the  record,  the  suit  must  be  pre- 
sumed to  have  been  commenced  in  the  name  of  the  first  W.  C. ; 
and  the  plea  of  his  death  before  impetration  of  the  writ  was 
good.i 

§  91.  In  ejectment,  the  death  of  the  original  plaintiflF  was  sug- 
gested, and  the  heirs  substituted,  except  one ;  but  the  jury 
brought  in  a  verdict  in  favor  of  all  the  parties  having  title.  Held, 
such  omission  was  amendable,  and,  though  an  amendment  by  the 
jury  was  an  irregularity,  it  was  not  such  as  would  entitle  the 
appellant  to  a  reversal  of  judgment.^ 

§  92.  If  the  lessor  of  the  plaintiff  in  ejectment  be  dead  at  the 
time  of  trial,  no  recovery  can  be  had  on  his  demise ;  if  alive  at 
the  commencement  of  suit  and  dead  before  trial,  costs  only  can 
be  recovered ;  if  dead  at  the  commencement  of  suit,  no  recovery 
can  be  had  at  all.^ 

§  93.  Where  the  plaintiff  dies  after  issue  joined  ;  there  being 
no  voluntary  appearance  on  the  part  of  the  defendant,  and  no 
scire  facias  served  on  him,  according  to  §§  16,  18,  art.  5  (Mis- 
souri) Rev.  Code,  1845,  there  can  be  no  revival  of  the  suit  in  the 
name  of  devisees.'* 

1  Morford  v.  Cook,  24  Tenn.  92.  Jones    v.    Tarver,    19   ib.  279  ;    Doe  v. 

'-J  Lynch  v.  Cox,  '2:}  Pcnn.  2(55.  Lewis,  29  ib.  45. 

3  Watson  V.    Tindall,    24    Geo.   494  ;         4  ifj„e  v.  Gray,  19  Mis.  33. 

nominal  (lama;j;es  ;  but,  on  a  point  of  law  an  election  between  her  inconsistent  riglits, 
reserved,  it  was  dcterinineil  thai  the  lessor  so  that  she  or  those  clainunj;-  nniler  her 
in  one  of  the  counts  was  barred  by  would  he  estopjied  from  setting  up  her 
the  Statute  of  Limitations  :  held,  the  title  to  the  land  ;  hehl,  the  plaintifls  were 
other  lessor  was  still  entitled  to  judiiment.  entitled  to  recover.  Davis  v.  Davis,  4(3 
Childers  v.  Bunijrarner,  8  Jones,  297.  Penn.  342.  ^yhere  a  widow  is  in  posses- 
A  iiusband  devised  land  held  in  trust  sion,  the  remedy  of  the  heir  is  under  the 
for  his  wife  to  four  of  his  children,  bindin;.?  (Penn.)  partition  Acts,  not  by  ejectment, 
them  to  pay  her  an  annuity  bequeathed  to  Gourley  r.  Kinley,  Gij  Penn.  270. 
her,  and  made  it  a  cliarge  upon  tiie  land.  Heirs  may  recover,  upon  proof  that  the 
In  ejectnient  by  two  of  the  sons  and  heirs  ancestor  died  seised  and  ])ossessed,  and 
of  their  mother,  to  whom  none  of  the  land  that  the  widow  entered  under  an  assign- 
had  been  devised,  there  being  no  evidence  ment  of  dower,  and  has  died.  Brownie, 
tliat  slie  had  ever  received  the  annuity,  Colson,  41  Geo.  42. 
or  that  she  inleniled  any  act  of  hers  to  be 


190  DISSEISIN,    EJECTMENT,   REAL    ACTION.  [BOOK   II. 

§  94.  A  testator  devised  land,  subject  to  a  right,  which  he  gave 
to  a  trustee,  to  sell  and  convey  any  of  the  same  at  his  discretion, 
for  the  payment  of  certain  legacies  and  debts.  The  devisee 
brought  a  writ  of  entry  to  recover  the  land  against  one  having  no 
title.  Held,  a  sale  and  conveyance,  duly  made  by  the  trustee  to 
the  tenant,  pending  this  action,  was  no  bar  to  the  demandant's 
recovery.! 

§  94  a.  In  ejectment  by  the  grantee  of  land  against  a  devisee 
of  the  grantor,  evidence  is  inadmissible  for  the  defence,  that  the 
services,  which  were  the  consideration  of  the  conveyance,  were 
not  performed  by  the  plaintiff.^ 

§  95.  A  died  in  possession  of  land,  the  title  to  which  was  in 
dispute  between  himself  and  B,  and  devised  his  interest  to  his 
widow,  whom,  with  another  person,  he  appointed  as  executor. 
Afterwards,  with  the  consent  of  the  Probate  Court,  the  executors 
and  B  compromised  their  claims,  and  divided  the  lot  between 
them,  giving  mutual  releases,  the  release  to  the  widow  being  to 
her  in  her  own  name,  without  any  mention  of  her  husband  or  of 
his  estate.  Subsequently  the  executors,  by  license  of  court,  for 
payment  of  debts,  sold  to  C,  and  the  widow,  as  executrix,  con- 
veyed to  him  all  the  right  and  interest  which  A  had  in  the 
premises  at  the  time  of  his  death.  After  A's  death,  the  widow 
remained  in  possession  up  to  the  time  of  the  sale  to  C.  In  eject- 
ment by  the  widow,  claiming  under  her  deed  from  B ;  held,  the 
widow  could  not  defeat  the  estate  provided  for  the  payment  of 
debts  by  annexing  her  possession  as  devisee  to  the  title  acquired 
from  B  ;  that  the  sale  by  the  executors  transferred  to  C  the  pos- 
session held  by  her  under  the  will  as  devisee  ;  and  that  he,  in 
defending  against  the  suit  brought  by  the  widow,  might  connect 
his  possession  after  the  sale  with  the  previous  possession  of  the 
widow  and  of  A  before  his  death. ^ 

§  96.  It  is  held  that  ejectment  may  be  maintained  by  an  exec- 
utor, empowered  by  will  to  sell  real  estate.'^ 

§  96  a.  An  executor  as  such,  and  the  devisees,  cannot  join  in 
ejectment.^ 

§  96  h.  In  ejectment  by  an  administrator  for  lands  of  his  in- 
testate, under  the  statutes  of  Arkansas ;   proof  of  his  intestate's 

1  Tainter    v.    Hemenway,     7     Cush.  3  Shaw  v.  Nicholay,  30  Mis.  99. 

573.  4  Chew's,  &c.  v.  Chew,  28  Penn.  17. 

2  Perry  v.  Scott,  51  Penn.  119.  5  Tarver  v.  Smith,  38  Ala.  135. 


BOOK    II.]  PARTIES.  191 

having  died  in  possession  is  primd  facie  evidence  of  seisin  in  fee 
of  the  intestate.^ 

§  97.  In  ejectment  hy  an  administrator,  where  no  seisin  accrued 
to  the  ancestors,  and  the  disseisin  arose  after  the  death  of  the 
intestate,  and,  in  contemplation  of  Uiw,  since  the  appointment  of 
the  administrator ;  proof  of  the  appointment  becomes  part  of  his 
title  to  recover,  and  must  be  made.  ^ 

§  97  a.  Where  the  defendant  claims  title  under  a  decree  author- 
izing the  administrator  of  a  former  owner  to  sell ;  the  question  of 
the  validity  of  such  decree  does  not  arise,  because,  if  invalid,  the 
title  would  be  in  the  heirs.  Upon  the  same  ground,  he  may  show 
possession  and  payment  of  taxes  by  those  under  whom  he  claims 
for  seven  years,  though  the  sale  to  him  were  void.^ 

§  97  6.  A  judgment  in  ejectment  against  the  administrator  of 
an  administrator  does  not  affect  the  right  of  the  original  intes- 
tate .^ 

§  98.  Where  the  actual  occupant,  upon  whom  service  was  made 
in  accordance  with  the  law  of  Illinois,  and  who  was  the  defendant 
in  ejectment  in  the  court  below,  died  after  judgment;  and  his 
attorney  and  landlord,  who  had  conducted  the  suit  in  the  name 
and  with  the  consent  of  the  deceased,  sued  out  a  writ  of  error  in 
the  name  of  the  heirs,  and  gave  a  bond  for  the  prosecution  of  the 
writ  and  for  costs :  it  appearing  that  the  attorney  of  the  deceased 
was  a  bond  fide  claimant  of  the  land,  and  prosecuting  the  writ  of 
error  in  good  faith,  a  motion  to  dismiss  the  writ  was  denied, 
although  the  heirs  authorized  the  motion.^ 

§  99.  If  an  action  of  ejectment  be  brought  upon  the  joint  and 
several  demise  of  two,  and  one  die  before  trial  and  judgment, 
and  the  action  be  not  revived  in  favor  of  his  heirs;  the  suit  must 
be  considered  as  discontinued  or  abated  as  to  the  demise  of  such 
lessor,  the  validity  of  whose  title  will  not  be  affected  by  a  final 
judgment  against  the  plaintiff.*^  (a) 

1  Carnall  v.  Wilson,  21  Ark.  62.  ■»  Perkins  v.  Blood,  36  Vt.  273. 

2  Austin  V.  Downer,  25  Verm.  558.  ^  Kelloirti;  v.  Forsvth,  24  How.  186. 
8  Oetgen  v.  Ross,  54  111.  7'J.  6  pintard  v.  Griffing,  32  .Miss.  133. 

(o)  Tiie  death  of  a  sole  tenant  abates  Sect.  14  (Verm.)  G.  S.,p.  391,  provides, 

the  writ.    The  (N.  II.)  statutory  exception  that,  when  an  administrator  is  apjiointed, 

api)lies   only     to   mortgages.     Pierce     v.  an  heir  .shall  not  bring  ejectnicMit  for  his 

Jaquith,  48  N.  H.  231.  ancestor's  lands  until  a  decree  ot  tlic  pro- 

The  heirs  of  a  decedent  may  maintain  bate  court  assigns  him  the  land,  or  until 
ejectment  for  land  of  which  their  ancestor  the  time  allowed  for  paying  debts  has  ex- 
died  out  of  possession.  Webster  v.  Web-  pired,  or  until  the  administrator  has  volun- 
6ter,  53  Peun.  161.  tarily  surrendered  possession  to  him.  Held, 


192 


DISSEISIN,    EJECTMENT,    REAL   ACTION 


[book  II. 


§  100.  Grantees,  and  all  who  enter  upon  the  land,  pending  the 
action  of  ejectment,  are  subject  to  be  removed  by  the  final  pro- 
cess.^  (a)  And  it  is  not  necessary  to  make  any  other  party  than 
the  occupant  a  defendant ;  a  judgment  against  him  binds  all  per- 
sons who  are  in  privity .^  (&)    One  claiming  an  interest,  but  not  in 


1  Watson  V.  Dowling,  26  Cal.  125; 
Wallen  v.  Huff;  3  Sneed,  82. 

an  heir  could  maintain  ejectment  nine 
years  after  administration  was  granted, 
as  it  would  be  presumed  that  the  time 
for  payment  of  debts  had  expired,  the 
probate  court  being  permitted  by  statute 
to  extend  the  time  of  paj'ment  only  for  a 
period  not  exceeding  three  years  and  six 
montl'.s.     Austin  v.  Bailey,  37  Vt.  219. 

Under  the  (Penn.)  Act  of  February  24, 
1834,  which  provides  for  sales  by  executors 
under  a  naked  authority  in  a  will,  and  also 
when  a  sale  is  directed  without  any  des- 
ignation by  whom  or  by  what  authority  ; 
executors  may  maintain  ejectment  with- 
£)ut  autliority  from  the  orphans'  court. 
Ivirk  V.  Carr,  54  Penn.  285.  P>jectment 
does  not  lie  against  the  administrator, 
to  compel  specitic  performance  of  his  de- 
cedent's contract.  Ejectment  must  be 
brought  by  the  )iolder  of  the  legal  title,  in 
order  to  command  a  verdict  against  the 
equity  of  tlie  purchaser,  and  must  be 
against  tlie  purchaser  himself  or  someone 
representing  his  title.  The  (Penn.)  Act  of 
April  9,  1849,  applies  only  to  the  executor 
or  administrator  of  the  vendor,  on  the 
principle  that  the  land  by  the  sale  is  con- 
verted into  personal  property  as  to  the 
vendor.  Where  A  agreed  to  sell  land  to 
B,  subject  to  a  mortgage  of  A's  ;  and  the 
land  was  sold  by  the  slieriflT  and  came  to 
B's  hands ;  held,  A  could  not  by  eject- 
ment compel  B  specifically  to  perform 
the  contract.  Thompson  v.  Adams,  55 
Penn.  479. 

The  devisees  of  land,  in  which  the  ex- 
ecutors hold  an  estate  for  years,  may 
maintain  a  writ  of  entry  against  a  dis- 
seisor, notwithstanding  a  lease  by  the 
executors  to  a  third  person.  Brewer  v. 
Stevens,  13  Allen,  346. 

Where  ejectment  is  brought  against  a 
tenant,  without  notice  to  the  landlord,  and 
judgment  is  rendered  for  the  plaintiff, 
the  possession  is  adversely  and  completely 
changed  by  the  judgment,  and  the  land- 
lord is  so  far  bound  by  the  judgment ; 
though  not  as  to  the  title  or  future  right 
of  possession.  Striddle  v.  Saroni,  21  Wis. 
173. 

Wliere,  in  ejectment  against  one  in  pos- 
session as  tenant  of  A,  the  defendant  had 
given  notice  of  the  suit  to  A,  as  required 


-  Hanson  v.  Armstrong,  22  111.  442. 


by  statute;  held,  A  would  be  deemed  to 
have  assumed  the  defence,  and  concluded 
by  a  recovery  therein  against  the  defend- 
ant ;  also  that  an  action  would  lie  against 
A  for  the  mesne  profits.  Van  Alstine  v. 
McCarty,  51  Barb.  326. 

Questions  may  arise,  in  connection 
with  tlie  death  of  a  party  interested,  with 
reference  to  the  defence  as  well  as  tlie  main- 
taining of  the  action.  In  Texas,  in  an 
action  by  a  stranger  for  the  recovery  of 
land  against  an  administrator,  proof  of 
title  in  his  intestate  is  a  good  defence, 
though  the  administration  be  void.  Vic- 
tory V.  Stroud,  15  Tex.  373. 

In  Iowa,  in  an  action  of  right  com- 
menced against  the  ancestor,  and  to  which 
the  heirs  are  made  parties  after  his  death, 
they  are  not  liable  for  the  rents  and  profits 
while  he  was  in  possession  ;  but  only  for 
such  time  as  they  are  shown  to  have 
been  in  possession.  In  such  a  case,  if  the 
plaintiff  seeks  to  recover  damages  from  the 
ancestor,  his  administrator  should  be  made 
a  party  with  the  heirs,  or  a  separate  action 
should  be  instituted  against  hira.  Caven- 
der  V.  Smitli,  8  Clarke,  360. 

In  England,  in  ejectment  for  a  vacant 
possession,  it  is  sufficient  to  direct  the  writ 
to  the  assignees  and  personal  representa- 
tives of  A  B,  deceased,  the  last  occupier. 
Harrington  v.  Bytiiam,  28  Eng.  L.  &  Eq. 
443. 

In  Pennsylvania,  in  ejectment,  where  the 
plaintiffs  claimed  title  by  sale  on  a  judg- 
ment against  an  administrator,  to  which 
the  heirs  were  not  parties  ;  held,  the  rec- 
ord of  the  judgment  and  proceedings  was 
admissible  in  evidence,  and  the  title  of  the 
deceased  was  conveyed  by  such  sale,  as 
against  strangers  to  the  suit.  Riland  v. 
Eckert,  23  Penn.  215. 

(fl)  A  writ  of  restitution  in  an  action  of 
ejectment  against  a  tenant  in  common  can- 
not be  served  upon  the  grantee  of  the  co- 
tenant  in  a  deed  executed  pending  the 
litigation.  Watson  v.  Dowling,  26  Cal. 
124. 

(b)  The  rule  of  the  New  York  Rev. 
Sts.,  that  only  the  tenants  in  actual  occu- 
l^ation  can  be  made  defendants  in  eject- 
ment, has  not  been  altered  by  the  Code. 
People  V.  Mayor,  28  Barb.  240. 


BOOK   II.] 


PARTIES. 


193 


possession,  is  not  a  necessary  party. ^  But  wliere  land  is  owned 
by  A,  B,  and  C,  and  A's  share  is  levied  on  by  D,  under  a  judg- 
ment against  A ;  neither  B  and  C  nor  their  grantees  can  be  dis- 
possessed by  the  execution.- 

§  101.  If  a  female  defendant  marries,  pending  the  case,  the 
plaintiff  is  not  bound  to  make  the  husband  a  party,  unless  he 
applies  to  be  made  such.-'^  (a) 

§  101  a.  Ejectment  may  be  maintained  against  an  infant  for 
disseisin,  that  being  a  tort.  (6)  But  he  must  appear  and  plead 
by  guardian,  unless,  pending  the  suit,  he  attains  to  full  age  and 
afterwards  pleads.* 

§  101  6.  And  ejectment  cannot  be  maintained  against  minors 
upon  the  possession  of  their  guardian.^ 

§  102.  Joint  ownership,  or  ownership  in  common,  gives  rise 
to  numerous  questions.*^  (c) 


118. 


1  Van  Buren  v.  Cockburn,   14   Barb. 


■i  Watson  V.  Dowling,  26  Cal.  125. 
3  Evans  v.  Greene,  21  Mis.  170. 


*  Marshall  v.  "Wing,  50  Maine,  G2. 
6  .Spitts  V.  Wells,  18  Mis.  4(;8. 
^  See   Tucker  y.  Phillips,  2  Met.   Ky. 
416 ;  Fosgate  v.  Ilerk,  &c.   2  Kern.  580. 


Tlie  ])]aintiff cannot  dismiss  the  action, 
as  against  one  whom  the  defendant  has 
made  a  codefendant.  Hayden  v.  Stew- 
art, 27  Mis.  286. 

In  ejectment,  relief  asked  for  in  an 
answer  is  properly  denied,  when  it  requires 
an  adjudication  of  the  rights  of  one  not  be- 
fore the  court.  Call  v.  Chase,  21  Wis.  511. 

Within  the  meaning  of  the  rule,  that  a 
judgment  in  ejectment  binds  the  parties 


Tlie  seisin  is  joint,  and  the  fee  is  in  lier. 
Stroebe  v.  Fehl,  22  Wis.  3-37. 

In  a  writ  of  entry  alleging  disseisin  by 
a  married  woman,  the  demandant  may 
put  in  evidence  fraudulent  conveyances 
to  her  sole  and  separate  use.  Blake  v. 
Sawin,  10  Allen,  340. 

(b)  More  especially  if  emancipated. 
Lackman  v.  Wood,  25  Cal.  147. 

(c)  In  Nevada,  tenants  in  common  may 


and  their   privies,  and  estops  them  from    join  to  recover  the  property  ;  and  though, 


denying  the  plaintiff 's  right,  &c., "  privies" 
are  those  who  enter  imder,  or  acquire  an 
interest  in  the  premises  from  or  through 
the  defendant,  or  enter  without  title,  in 
collusion  with  him,  subsequently  to  the 
commencement  of  the  action.  Tenants 
are  not  estopped  as  to  their  term  by  a 
judgment  against  their  lessor,  if  tliey 
acquired  their  lease  before  commence- 
ment of  suit.  Satterlee  v.  Bliss,  36  Cal. 
489. 

In  ejectment  under  the  (Penn.)  Act  of 
April  14,  1851,  by  a  vendor,  to  enforce 
performance,  mider  a  rule  to  ai)])ear  and 
plea<],  if  there  is  no  ilescription  of  the 
premises  in  the  rule  and  publication,  nor 
any  mention  that  the  pending  action  was 
ejectment ;  judgment  cannot  be  entered 


pending  a  joint  suit,  they  make  mutual 
deeds  of  certain  portions,  a  joint  judgment 
may  be  rendered  for  the  whole.  Alford 
V.  Dewin,  1  Nev.  207. 

Several  plainlirts  cannot  jointly  recover 
judgment,  if  one  has  no  title.  Primm  v. 
Walker,  38  Mis.  'J4.  In  ejectment  by  one 
heir,  a  contract  with  the  ancestor  is  a  de- 
fence ;  but,  if  it  jirevails,  the  defen<lant 
would  not  be  entitled  to  a  decree,  vesting 
the  title  in  himself  as  against  all  the  heirs. 
Harris  r.  \'inyar(l,  42  Mis.  5t)8. 

If  one  plaintifi'  holds  the  legal  title  in 
his  own  riglit,  and  as  trustee  of  the  others, 
he  may  recover  tiie  entire  property.  Adler 
V.  Sewell,  2'.)  Ind.  5«j8. 

If  a  writ  of  entry  is  brought  by  two, 
and  the}'  prove  a  joint  title  prior  to  the 


against  a  party  who  has  had  no  service  of  date  of  the  writ ;  the  tenant,  under  a  jilea 
the  writ  upon  him.  Koberts  v.  Orr,  56  of  mil  dissiisin,  may  show  that  subse- 
Penn.  176.  quently,  and  before  the  date  of  the  writ, 

(«)  The  husbanil  cannot  aver  that  he     one  of  them  conveyed    his  title  to    the 
alone  is  seised  in  fee  in  right  of  his  wife,     other.     Patten  v.  Adams,  8  Allen,  204. 

13 


194 


DISSEISIN,   EJECTMENT,   REAL   ACTION. 


[book  II. 


§  102  h.  When  two  are  in  possession  of  land  under  different 
claims,  he  has  the  seisin  in  whom  the  legal  title  is  vested.^  Acts 
of  ouster  committed,  and  possession  thereby  acquired,  by  one 
person,  with  the  knowledge  and  consent  of  another,  for  their  joint 
benefit,  are  the  acts  and  possession  of  both.^ 

§  103.  A  person  with  an  undivided  interest  in  land  may  bring 


1  Winter  v.  Stevens,  9  Allen,  526. 

Wliere  the  plaintiflF  claimed  an  undi- 
Tided  tiiird  of  certain  lands,  derived  from 
the  United  States,  against  tlie  defendant, 
who  held  under  tax  deeds,  of  wliich  one 
conveyed  an  undivided  two-thirds,  and 
the  other  an  imdivided  one-third  ;  held, 
it  was  for  the  defendant  to  show  that  this 
undivided  interest  included  the  p]aintifl["'s 
third.     Butler  v.  Porter,  13  Mich.  292. 

Where  two  mortgage  propert}',  they 
may  bring  an  action  for  its  recovery,  and 
the  tenant,  not  claiming  under  the  mort- 
gage, cannot  set  it  up  to  defeat  the  action  ; 
and  this  right  passes  to  the  purchaser  of 
the  interest  of  one  of  the  mortgagors, 
who  may  join  witli  his  part  owner  in  such 
action.     Lane  v.  Sleeper,  18  N.  H.  209. 

In  California,  one  tenant  in  common  can 
recover  tiie  demanded  premises  entire,  as 
against  all  parties,  except  his  cotenants, 
and  persons  holding  under  tliem.  But  the 
judgment  will  be  in  subordination  to  the 
rights  of  his  cotenants.  Hardy  v.  John- 
son, 1  Wall.  371. 

The  owner  of  lands  conveyed  them 
to  the  defendant's  grantor,  subject  to  an 
annual  rent-cliarge,  and  the  right  of 
re-entry  for  non-payment  of  rent.  The 
grantor  died,  leaving  six  heirs.  Held,  one 
of  them  could  maintain  ejectment,  for  her 
one-sixth,  for  non-payment  of  rent.  Cru- 
ger  i\  McClaughry,  51  Barb.  642. 

Where  the  plaintifl"  claims  to  recover 
the  entire  property,  he  cannot  have  judg- 
ment for  an  undivided  part.  Bresee  v. 
Stiles,  22  Wis.  120. 

Wliere  one  plaintiff  has  no  title,  none 
of  them  can  recover.  Murphy  v.  Orr,  32 
III.  489. 

The  plaintiff,  upon  a  claim  for  an  un- 
divided share,  cannot  recover  either  the 
whole  or  an  undivided  interest,  greater 
or  less  than  that  claimed ;  neither  can  he 
recover  an  undivided  part  upon  a  claim 
for  the  whole.  AUie  v.  Schmitz,  17  Wis. 
169. 

A  plaintiff  in  ejectment,  suing  for  an 
undivided  interest  in  land,  may  recover 
an  interest  less  than  the  one  sued  for. 
Halsey  v.  Martin,  22  Cal.  645. 


•■2  Treat  v.  Reilly,  35  Cal.  129. 

Devise  to  S.  of  a  life-interest  in  one 
hundred  and  forty-seven  acres,  to  be  laid 
off  from  the  north  end  of  a  dwelling  plan- 
tation. After  his  death  ejectment  was 
brought  for  part  of  the  land,  by  a  residuary 
devisee  of  all  the  plantation  not  devised 
to  S.,  and  heir  to  half  of  the  land  devised 
to  her.  Held,  the  plaintiff' was  entitled  to 
recover  a  moiety  of  the  land,  though  there 
had  never  been  a  valid  partition  under 
the  will.  In  such  an  action,  evidence 
that  an  informal  survey  and  location, 
which  did  not  amount  to  a  partition  under 
the  will,  had  been  made,  and  that  S.  took 
possession  under  it,  is  admissible  for  the 
plaintiff,  to  show  that  S.  held  under  the 
will,  and  not  adversely  to  it  and  his  title. 
Nutwell  V.  Tongue's,  22  Md.  419. 

Under  §  169,  Sched.  (A.)  No.  13,  and 
§  180,  of  the  Common  Law  Procedure 
Act,  1852  (15  &  16  Vict.  c.  76),  two  ten- 
ants in  common  may  join  in  ejectment, 
stating  that  tliey,  or  some  or  one  of  them, 
claim  to  be  entitled  ;  and  the  whole  of  the 
property  to  wliich  they  are  entitled  in 
common  may  be  recovered  on  such  writ. 
EUiss  V.  EUiss,  1  Ell.,  B.  &  E.  81. 

Under  the  Spanish  law  in  force  in  Flor- 
ida, a  wife  may  join  her  husband's  heirs 
in  ejectment  for  real  estate,  purchased  by 
him  after  marriage.  MaGee  v.  Doe,  9 
Florida,  382. 

The  use  and  occupation  by  a  husband 
and  his  family  of  a  right  of  way,  purchased 
in  his  name,  but  appurtenant  to  the  wife's 
land,  is  a  sufficient  possession  by  her  of 
the  right  of  way,  to  authorize  a  jiulgment 
in  ejectment  against  both  in  favor  of  one 
who  has  a  common  interest  in  the  right  of 
way.     Gordon  v.  Sizer,  39  Miss.  805. 

In  ejectment  against  a  husband  and  wife 
for  an  undivided  two-thirds  of  land,  his 
testimony,  in  a  trespass  suit  by  the  same 
plaintiff' against  him  alone,  that  he  entered 
and  built  a  fence  thereon,  as  her  agent, 
is  not  proof  of  an  ouster,  so  long  as  the 
wife  might  be  presumed,  from  possession 
or  otherwise,  to  own  the  other  third. 
Yager  v.  Larsen,  22  Wis.  184. 


BOOK   II.]  PARTIES.  195 

an  action  of  right,  and  recover  a  verdict  and  judgment.  But  not 
for  the  fee-simple  of  the  entire  estate,  nor  the  possession  thereof, 
but  merely  for  the  interest  proved,  although  declaring  for  the 
entire  fee.  And  the  possession  is  a  necessary  result  of  the  ver- 
dict and  judgment,  and  must  be  held  subject  to  the  rights  of  bis 
cotenant.^ 

§  104,  In  a  writ  of  entry,  brought  by  one  tenant  in  common 
against  a  stranger,  for  his  undivided  share  of  the  land,  it  is  no 
objection  to  a  recovery,  under  the  general  issue,  that,  after  suit 
brought,  he  procured  his  undivided  share  to  be  set  off"  to  him  in 
severalty  by  proceedings  for  partition.  But  the  verdict  and  judg- 
ment must  still  be  for  the  undivided  interest.^ 

§  105.  To  sustain  ejectment  by  several  plaintiff's,  all  must  show 
a  legal  title,  and  the  right  to  irjimediate  possession,  not  only  at 
the.  commencement  of  the  suit,  but  also  at  the  time  of  the  trial 
and  judgment."^ 

§  106.  In  Georgia,  a  recovery  may  be  had  in  ejectment  by  a 
surviving  joint  lessor,  to  the  extent  of  a  moiety  of  the  land  and 
of  the  mesne  profits.^ 

§  107.  Where  a  trial  in  ejectment  is  had  before  counsel  are 
apprised  of  the  death  of  one  of  the  joint  lessors,  a  suggestion  of 
the  death  may  be  made  after  verdict,  and  entered  nunc  pro  tunc, 
vacating  the  judgment  as  to  the  deceased.^ 

§  108.  A  conveyance  by  one  of  several  plaintiff's,  pending  a 
cause,  of  his  interest  in  the  land  in  suit,  will  not  abate  the  action 
as  to  him,  but  it  may  be  continued  at  least  for  mesne  profits  up  to 
the  time  of  his  parting  with  his  title.^ 

§  109.  AVhere  the  plaintiff  claims  the  entire  premises  from  a 
stranger  to  his  title,  he  may  recover  an  undivided  interest,  and 
will  hold  in  common  with  the  defendant.''  If  a  sufficient  title 
in  one  lessor  is  shown,  the  non-production  of  proof  of  title  in 
other  lessors  will  not  authorize  the  court  to  order  their  demises 
stricken  from  the  declaration.  Otherwise,  if  demises  were  shown 
to  have  been  laid,  from  persons  with  good  title,  to  support  a 
fraudulent  one,  and  without  authority  from  the  lessors.^ 

§  110.  The  owner  of  an  undivided  interest  may  maintain  eject- 

1  Hupfhes  V.  Hollidav,  3  Iowa,  30.  5  lb. 

2  Hall  V.  Dodge,  38  N.  H.  34(3.  6  Wood  v.  McGuire,  21  Geo.  576. 

3  Cheney  v.  Cheney,  26  Verm.  606.  "  Gray  v.  Givens,  26  Mis.  2'.ll. 

*  Bryan  v.  Averett,  21  Geo.  401.  8  Martin  v.  Anderson,  21  Geo.  301. 


196  DISSEISIN,   EJECTMENT,   REAL   ACTION.  [bOOK   II. 

ment  and  recover  to  the  extent  of  his  ownership.  But  where 
the  title  was  vested  in  a  partnersliip,  and  a  division  was  made  and 
parcels  assigned  to  each  partner,  in  a  writing  signed  by  the  par- 
ties, but  without  seals ;  held,  no  such  title  to  the  separate  parcels 
was  vested  in  each  partner  as  would  maintain  ejectment.^  But  a 
tenant  in  common  may  maintain  ejectment  alone,  though  also  a 
surviving  partner. ^ 

§  111.  In  an  action  by  A  and  B,  who  prove  a  joint  title,  under 
the  plea  of  mil  disseisin,  the  tenant  may  prove  a  conveyance  from 
A  to  B  prior  to  the  date  of  the  writ.^  So  a  declaration  in  eject- 
ment, containing  only  a  count  upon  the  joint  demise  of  two  per- 
sons, of  whom  only  one  had  title,  cannot  be  sustained.'* 

§  112.  Husband  and  wife  must  join  in  ejectment  for  her  land.^ 
So  if  she  has  a  joint  interest,  and  is  jointly  seised  with  him,  with 
the  right  of  survivorship  for  life,  she  is  properly  joined  with  him 
in  the  suit.*^ 

§  113.  The  question  of  joint  title  also  arises  in  relation  to  the 
defendants." 

§  114.  In  a  writ  of  entry,  upon  an  issue  of  alleged  joint  tenancy 
of  the  defendants,  it  is  sufficient  for  the  demandant  to  show,  that 
he  owns  and  is  entitled  to  possession  of  the  premises,  and  that  the 
tenants  are  in  joint  possession,  claiming  the  property.  He  is  not 
bound  to  go  into  the  title  of  the  tenants.  Where  such  issue 
was  made,  an  instruction  to  the  jury,  that  they  should  return  a 
verdict  for  the  tenants,  unless  they  should  find  that  they  were  in 
possession,  claiming  under  a  common  title,  or  by  an  agreement 
among  them  that  the  occupation  should  be  by  them  in  common 
for  their  joint  benefit,  for  the  lifetime  of  any  one,  was  held  erro- 
neous.^ 

§  115.  One  who  claims  title  to  land  may  bring  one  suit  against 
all  the  tenants  in  possession,  although  they  may  severally  possess 
distinct  portions  of  it;  and  they  may  protect  themselves  from  a 
joint  judgment  for  damages,  by  showing  the  character  and  extent 
of  their  possession.^     But  where  defendants  in  ejectment  claim 

1  Tarver  v.  Smith,  38  Ala.  135.  6  Wentworth  v.  Remick,  47  N.  H.  226. 

2  Robinson  y.  Roberts,  31  Conn.  145.  ''See    Hollingsliead    v.    Nauman,    45 

3  Fatten  V.  Adams,  8  Alien,  204.  Penn.   141 ;   Dillaye  v.  Wilson,  43  Barb. 

4  Elliott  V.  Newbold,  6  Jones,  9  ;  Bryan  261 ;  Fosgate  v.  Herk,  &c.,  2  Kern.  5«0 
V.  Manning,  ib.  334.  Ellis  v.  Jeans,  26  Cal.  275. 

5  AUie  V.  Scbmitz,  17  Wis.  169.     See  ^  Tappan  v.  Tappan,  11  Fost.  41. 
Clark  V.  Clark,  20  Ohio  St.  128.                          9  Rowland  v.  Ladiga,  21  Ala.  9. 


BOOK    II.]  PARTIES.  197 

different  parcels  of  land  under  distinct  titles,  and  do  not  sustain 
the  relation  of  landlord  and  tenant ;  a  joint  action  cannot  be  main- 
tained against  them  for  the  premises  and  mesne  profits. ^ 

§  IIG.  Where  a  complaint  alleges,  that  the  defendants  entered 
on  certain  land,  and  unlawlully  withheld  the  possession  from  the 
plaintiffs,  and  all  the  proof  against  one  defendant  is,  that  he  is  the 
landlord  of  the  other  defendant,  who  has  actually  entered;  eject- 
ment will  not  lie  against  hira.^ 

§  117.  That  one  co-defendant  had  surrendered  possession  to 
the  other,  authorizes  a  finding  of  possession  by  one  and  not  by  the 
other,  and  judgment  thereupon  against  the  f<:)rmer  only.  But 
such  judgment  is  not  conclusive  that  the  latter  had  no  right  to 
the  possession.^ 

§  118.  Where  the  defendants  plead  severally  the  general  issue, 
the  court  may  order  a  general  verdict  against  all  those  who  have 
not  shown  that  they  were  in  possession  of  separate  parcels.* 

§  119.  Where  one  claiming  title  to  land  in  the  possession  of 
two  or  more  brings  a  joint  action  against  all ;  if  the  possession 
is  several,  they  may  sever  in  defence,  and  disclaim  as  to  the  res- 
idue.^ 

§  120.  In  ejectment  against  several,  proof  by  the  plaintiff  of 
what  portion  was  occupied  by  one  is  admissible.*^ 

§  121.  Where  several  defendants  are  sued  in  ejectment,  and 
one  of  them  shows  color  of  title,  and  seven  years'  possession, 
distinct  from  the  possession  of  the  others ;  the  defence  of  the  one 
cannot  avail  the  others.'^ 

§  122.  A  general  verdict  will  bind  all  the  defendants  in  eject- 
ment, unless  they  answer  separately,  or  demand  separate  ver- 
dicts.^ 

§  123.  A  and  two  others  were  tenants  in  common.  B  entered 
under  color  of  title,  and  held  possession  several  years,  but,  before 
the  statutory  period  was  completed,  A  and  his  cotenants  made 
partition,  and  to  A  was  assigned  a  part  over  which  B's  color  of 
title  extended,  but  of  which  he  had  no  actual  possession.  B  con- 
tinued in  possession  after  the  partition,  as  before,  until  the  statu- 

1  AVood  V.  M'Guire,  17  Geo.  303.  »  Wilson  v.  Guthrie,  2  Grant,  111. 

-  Ciiamplain,  &c.  v.  Valentine,  lU  Barb.  «  Ellis  r.  Janes,  10  Cal.  4')('). 

484.  ''  McKay  v.  Glover,  7  Jones,  41. 

3  Burke  v.  Table,  &c.,  12  Cal.  403.  8  Ellis  v.  Jeans,  7  Cal.  WJ. 
*  Greer  v.  Mezes,  24  How.  208. 


198 


DISSEISIN,   EJECTMENT,    REAL   ACTION. 


[book  II. 


tory  period  was  complete.    Held,  B  had  not,  as  against  A,  acquired 
a  title  by  possession  to  the  part  allotted  to  A.^  (a) 

§  124.  The  questions  of  adverse  title,  and  the  right  to  main- 
tain ejectment,  often  arise  between  tenants  in  common  them- 
selves, (h)     Occupancy  by  one  tenant  in  common,  accompanied 

1  Hill  V.  Saunders,  6  Rich.  62. 


(a)  Ajuclgmentin  ejectment  against  co- 
tenants  is  not  erroneous,  because  all  are 
not  brought  in.  Colman  v.  Clements,  23 
Cal.  245.  In  ejectment  against  several 
defendants,  judgment  for  damages  may  be 
rendered  against  all  jointly,  although  one 
or  more  of  them  have  not  been  in  pos- 
session of  the  whole  of  tlie  premises,  but 
in  exclusive  possession  of  a  part,  if  no 
request  is  made  for  a  several  judgment. 
In  ejectment  for  five  hundred  acres,  it 
appeared  that  the  plaintiff  was  in  posses- 
sion of  one  hundreil  and  eighty.  Held, 
it  was  error  to  give  damages  for  tlie  occu- 
pation of  the  whole,  altliough  the  answer 
denied  the  plaintiti''s  title  to  the  whole. 
If  judgment  lias  been  reversed,  because 
the  plaintiff  was  in  possession  of  part  of 
the  land,  for  tlie  occupation  of  whicli 
damages  were  given,  the  plaintiff  cannot 
release  such  part  from  the  operation  of 
the  judgment,  if  its  location  has  not  been 
determined.     Ellis  v.  Jeans,  26  Cal.  272. 

Sect.  2y,  2  (X.  Y.)  Rev.  Sts.  307,  provid- 
ing that,  when  an  action  is  commenced 
against  several,  and  they  do  not  all  occupy 
jointly,  tlie  plaintiff  shall  elect,  at  tlie  trial, 
against  which  he  will  proceed,  &c.,  was 
retained  in  force  by  §  455  of  the  Code, 
which  provides  that  "  the  general  provi- 
sions of  the  Rev.  .Sts.,  relating  to  actions 
concerning  real  property,  shall  apply  to 
actions  brought  under  this  act,  according 
to  the  subject-matter  of  the  action,  witli- 
out  regard  to  its  form."  A  person  sued 
A  and  B  jointh^,  for  one  undivided  tenth 
part  of  certain  land.  A  and  B  were  not 
in  joint  possession,  but  each  occupied  a 
'  distinct  parcel  in  severalty.  The  defend- 
ants filed  separate  answers,  A  only  alleg- 
ing several  occupation.  It  was  found  that 
the  plaintiff  was  entitled  to  one  undivided 
tenth  part.  Held,  judgment  should  be 
against  B,  and  the  plaintiff  miglit  elect 
to  proceed  against  A.  Dillaye  v.  Wilson, 
43  Barb.  261. 

Acts  of  ouster  committed,  and  posses- 
sion thereby  acquired,  by  one  with  the 
knowledge  and  consent  of  another,  for 
their  joint  benefit,  are  the  acts  and  posses- 
sion of  both.  Treat  v.  Reilly,  35  Cal.  129. 
The  pendency  of  an  action  of  ejectment 
by  B  and  C  against  A,  in  which  A  denies 
the  complaint,  alleges  title,  but  asks  no 


affirmative  relief,  cannot  be  set  up  as  a 
defence  to  an  action  by  A  against  B,  D, 
C,  and  others,  to  quiet  title  to  his  land, 
alleged  to  have  been  clouded  by  tlie  state- 
ments of  the  defendants  that  the  title  was 
in  tliem.     Ayres  v.  Bensley,  32  Cal.  620. 

In  ejectment  against  two,  if  the  plaintiff 
show  possession  in  one  alone,  he  is  en- 
titled to  a  verdict  and  judgment  against 
him.     Gordon  v.  Sizer,  39  Miss.  805. 

Where  a  title  is  brouglit  down  to  two, 
a  deed  of  one-half  the  lot  to  the  defend- 
ant, from  one  of  them,  is  sufficient  to  pre- 
vent eviction.  Roe  v.  Doe  d.  Johnson, 
30  Ga.  611. 

If,  in  a  writ  of  entry  against  A  and  B, 
the  writ  and  pleadings  admit  A  to  be  in 
possession,  with  claim  of  title,  which  is 
proved  to  be  riglitful,  the  plaintiff  cannot 
have  judgment  against  B.  Smyth  v. 
Carlisle,  16  N.  H.  464. 

Landlord  and  tenant  cannot  defend 
separately.  Helfenstein  v.  Leonard,  50 
Penn.  461. 

An  order  of  court,  admitting  one  de- 
fendant to  defend  as  landlord,  does  not 
preclude  evidence  wliich  is  competent 
only  against  the  others.  Russell  v.  Er- 
win's,  41  Ala.  292. 

The  answer  of  a  tenant,  which  denies 
all  the  allegations  of  the  petition,  cannot 
be  stricken  out,  although  the  separate 
answer  of  the  landlord  was  stricken  out, 
as  presenting  no  valid  defence.  Jones  v. 
Jackson,  38  Mis.  444. 

If  it  appears  by  the  complaint  that  the 
defendants  are  landlord  and  tenant,  they 
must  set  up  the  misjoinder  in  their  answer. 
Ames  I'.  Harper,  48  Barb.  56. 

Where  a  lessor  claims  title  to  the  prem- 
ises, and  an  action  is  brought  against 
him  ;  non-joinder  of  the  tenant  must  be 
taken  advantage  of  by  answer  or  de- 
murrer. And  the  objection  is  maintained 
l)y  the  landlord's  statement  to  the  plain- 
tiff's attorney,  upon  his  serving  process 
on  him,  that  he  was  in  pf)ssession.  Fin- 
negan  v.  Carraher,  47  N.  Y.  493. 

(6)  One  tenant  in  common  may  main- 
tain a  bill  in  equity  against  his  cotenants, 
some  of  wliom  are  infants,  who  have 
occupied  the  whole  property,  for  an 
account.  Whenever  the  nature  of  prop- 
erty held  in  common   does  not  admit  of 


BOOK   II.]  PARTIES.  199 

with  a  total  denial  of  the  other's  title,  is  a  disseisin.^  And  this 
without  demand  of  possession,^  So  wliere  a  boiler,  engine,  and 
stack  were  erected  on  land  of  the  plaintiff  at  the  joint  expense  of 
himself  and  the  defendant,  under  an  agreement  to  use  them  as  a 
common  source  of  power,  without  limitation  as  to  time;  held,  the 
interests  were  in  the  nature  of  real  estate,  and  for  exclusion  there- 
from the  action  of  ejectment  might  be  maintained.'^ 

§  124  a.  The  possession  of  one  is  that  of  all,  and,  unless  the 
propei-ty  has  been  actually  converted  or  destroyed,  an  action  at 
law  will  not  lie.'^  So  the  possession  of  a  cotonant  will  be  pre- 
sumed to  be  in  right  of  the  common  title,  and  he  cannot  claim  tha 
protection  of  the  Statute  of  Limitations,  unless  it  clearly  ap])ears 
that  he  repudiated  the  title  of  his  cotenant  and  is  holding  ad- 
versely to  it.  And  his  acts  and  declarations  will  be  construed 
much  more  strongly  against  him  than  when  there  is  no  privity  of 
title.'^ 

§  124  6.  The  Statute  of  Limitations  will  not  run  unless  there 
has  been  an  open,  notorious,  exclusive,  adverse  possession  of  the 
other.  But  direct  notice  of  the  adverse  possession  need  not  be 
proved,  but  the  jury  may  presume  notice  from  facts  and  circum- 
stances.^ 

§  124  c.  A  notice,  to  constitute  the  commencement  of  an  ad- 
verse possession,  must  give  the  cotenant  to  understand  that  the 
claimant  will  no  longer  keep  possession  for  his  cotenant,  and 
that  he  claims  and  is  holding  the  entire  premises  against  him. 
In  order  that  the  statute  should  begin  to  run,  there  must  be 
what  the  law  will  regard  as  an  actual  ouster.  The  taking  a 
deed  by  one  tenant  from  a  third   party,  and  recording  it,  would 

1  Peterson  v.  Laik,  24  Mis.  541 ;  Larman  -  Harrison  v.  Tavlor,  33  Mis.  211. 

V.  Huey,  13  B.  Man.  436;  Van  Valken-  »  Hill  r.  Hill,  23rcnn,  521. 

burg    V.    Huff,    1    Nev.    142;    Mallett    v.  •»  Stron<r  r.  Colter,  13  Minn.  82. 

Uncle,  &c.,  ib.  188  ;  Carpentier  v.   Web-  »  jj.iHv  ,..  Trannnell,  27  Te.\.  317. 

8ter,  27  Cal.  548.  «  Peeler  v.  Guilkey,  27  Tex.  355. 

its  use  and  occupation  by  several,  and  it  condition  in  wliich  it  was  at  tlie  time  it 
is  u.sed  and  occupied  by  one  only,  or  came  to  his  possession,  with  interest.  If 
when  tlie  ])ro])crty,  thoujili  cajiable  of  use  a  tenant  in  common  leases  the  undivided 
and  occujiation  by  several,  is  yet  so  used  interest  of  his  cotenant,  and  after  tlie 
and  occu])ied  by  one  as  in  eHect  to  ex-  exjiiration  of  tlie  lease  holds  over,  and 
elude  the  others,  he  will  be  held  account-  expressly  admits  tliat  "  he  always  re- 
able  to  the  others  for  the  rents  and  jirofits.  fjarded  liimself  as  holdintj  and  occupying 
So  where  the  pnijierty  is  rented  out  by  one  under  the  orij^inal  rent  reserved  ;  "  he  will 
tenant.  One  tenitnt  is  not  accountahle  for  be  held  to  account  for  the  rent  for  the  use 
profits  made  by  tlie  application  of  his  labor  of  the  property,  at  the  rate  ])aiil  under 
and  caiiitid  t<i  the  projierty,  but  only  for  the  the  lease.  Early  v.  Friend,  1(3  Gratt,  21. 
fair  yearly  value  of  the  property  in  the 


200 


DISSEISIN,   EJECTMENT,   REAL   ACTION. 


[book  it. 


not  constitute  an  ouster^  unless  accompanied  by  a  hostile  claim  of 
which  the  cotenant  had  knowledge,  and  acts  of  possession  incon- 
sistent with  and  in  exclusion  of  the  continuing  right  of  the  co- 
tenant.^ 

§  125.  But,  in  general,  the  doctrine  of  possessio  fratris  applies 
to  the  several  occupancy  of  one  tenant  in  common,  and  ejectment 
does  not  lie.'^(a)  So  where  there  is  a  negotiation  between  them 
concerning  the  property.^  Thus  an  agreement  was  made  by  A 
and  B  to  purchase  land  and  jointly  erect  a  house.  A  paid  for 
the  land  and  took  a  deed  to  himself,  and  B  built  the  house,  finish- 
ing a  part  to  suit  A,  and  a  part  himself  B  with  his  family 
moved  into  the  house,  and  boarded  A,  each  occupying  a  distinct 
portion  of  the  house,  with  no  agreement  that  B  should  pay  rent 
or  occupy  as  tenant,  but  his  occupation  being  under  claim  of 
title,  and  without  express  objection  from  A.  Held,  no  disseisin 
of  A.4  (b) 


1  Holley  I'.  Hawley,  39  Vt.  525. 

2  Stevenson  v.  Huddleson,  13  B.  Mon. 
299 ;  Tulloch  v.  Worrall,  49  Penn.  133. 

(o)  Where  tlie  possession  of  land  has  de- 
scended, one  heir,  who  is  also  executor, 
cannot  hold  against  his  cotenants,  al- 
though he  has  bought  from  a  third  per- 
son, claiming  to  hold  a  perfect  title.  Keller 
V.  Auble,  58  Penn.  410. 

One  tenant  in  common  can  acquire  no 
title  to  the  interest  of  another  by  bidding 
at  a  sale  for  delinquent  taxes.  Butler  v. 
Porter,  13  Mich.  292. 

After  partition  between  J.  and  E.,  ten- 
ants in  common,  the  whole  land  was  sold 
for  taxes  assessed  upon  it  before  the  parti- 
tion, and  the  tax  title  was  assigned  to  R. 
Held,  he  could  acquire  no  title  under  the 
deed  against  J.  Maul  v.  Rider,  51  Penn. 
377.  Where  two  occupied  under  an  agree- 
ment to  convey  to  them  upon  payment  of 
the  purchase-money,  and  one  by  fraud 
procured  a  conveyance  to  himself  alone  ; 
held,  he  was  a  trustee  of  the  other's  share, 
whether  he  undertook  to  act  as  agent  or 
not.     lb. 

F.  purchased  of  S.  an  undivided  half  of 
vacant  land,  and  afterward  E.  the  other 
half  Held,  as  there  was  no  privity,  the 
acquisition  of  a  superior  outstanding  title 
to  the  whole  tract  by  R.  did  not  enure  to 
the  benefit  of  F.  Roberts  v.  Thorn,  25 
Tex.  728. 

(6)  If  one  tenant  in  common  takes  the 
possession  to  himself,  claiming  the  entire 
tract  as  his  own,  and  receives  the  rents 
and  profits  to  his  own  use,  without  any 


3  Newell  V.  Woodruff,  30  Conn.  492. 
*  Winter  v.  Stevens,  9  Allen,  526. 


account,  and  the  other  acquiesces  in  this 
for  twenty  years  or  more ;  an  actual  ouster 
may  be  presumed.  Hilton  v.  Duncan,  1 
Cold.  313. 

Where  one  cotenant  takes  possession, 
and  openly  exercises  acts  of  exclusive 
ownership  during  a  long  series  of  years, 
carrying  on  an  extensive  quarrying  of 
rock,  digging  deep  holes  in  the  ground, 
and  removing  large  masses  of  the  soil  and 
rock  ;  such  acts  afford  direct  evidence  of 
an  actual  ouster,  and  should  be  submitted 
to  the  jury  on  that  question.  IMere  acqui- 
escence by  one  tenant,  and  a  continuous 
and  exclusive  possession  by  another  of  the 
whole  premises,  taking  all  the  profits  and 
paying  the  taxes  for  more  than  twenty-six 
years,  and  for  a  time  beyond  the  full 
period  of  the  Statute  of  Limitations,  both 
as  a  bar  to  an  ejectment  and  to  an  action 
of  account,  warrant  the  court  in  instruct- 
ing the  jury  to  infer  an  actual  ouster,  if 
upon  the  whole  evidence  they  were  satis- 
fied that  such  was  the  feet.  Warfield  v. 
Lindell,  38  Mis.  561. 

A  tenant  in  common,  after  demand  of 
possession  in  common  by  a  cotenant,  took 
a  conveyance  of  the  entire  premises  from 
a  hostile  source,  and  claimed  under  it  as 
sole  owner.  Held,  sufiicient  to  warrant 
a  jury  in  finding  an  ouster.  Clark  v. 
Crego,  47  Barb.  599. 

It  is  not  necessary,  to  constitute  ouster, 
that  there  should  be  a  forcible  ejection 


BOOK   II.] 


PLEADING. 


201 


§  126.  The  statutory  changes  in  actions  for  the  recovery  of  real 
property  have  done  away  with  most  of  the  numerous  technicali- 
ties in  pleading. 

§  127.  The  declaration  in  ejectment  must  describe  the  prem- 


or  a  forcible  Iiiiidrancc  of  entry.  Ixefusal 
of  the  ri^lit,  attended  l)y  circumstances 
sliowing-  a  determination  to  resort  to  pliys- 
ical  force  if  necessary,  is  sufficient.  Jef- 
coat  V.  Knotts,  13  Kicli.  L.  50. 

A  denial  ot  title  by  a  cotenant  in  pos- 
session is  a  fact  from  which  an  ouster  may 
1)6  inferred.  Carpentier  v.  Gardiner,  2y 
Cal.  IGO. 

The  sole,  silent  occupation  by  one  co- 
tenant  of  the  entire  ju'operty,  claiminii' the 
whole  aiul  takiiij;:  the  whole  ])rot1ts,  with- 
out an  account  to  or  claim  by  the  others, 
accompanied  by  no  act  which  can  amount 
to  an  ouster,  or  give  notice  to  his  cotenants 
that  his  possession  is  adverse,  cannot  be 
construed  into  an  adverse  possession.  The 
e.xclusive  and  uninterrupted  ])ossession,  by 
one  tenant  in  common,  of  land  for  a  great 
number  of  ^•ears,  claiming  the  same  as 
his  own,  without  any  account  with  his  co- 
tenants  or  claim  on  their  part,  they  being 
under  no  disability  to  assert  their  rights, 
becomes  evidence  of  a  title  to  such  sole 
possession,  and  the  jury  are  authorized  to 
presume  a  release,  an  ouster,  or  other 
thing  necessarj'  to  protect  the  possessor, 
and  the  action  of  ejectment  by  liis  co- 
tenants  will  be  barred.  Such  presump- 
tion may  be  rebutted  by  proof  of  infancy 
or  coverture,  by  the  intervention  of  a 
particular  estate,  or  by  the  relation  of  the 
parties,  or  other  facts  showing  that  the 
possession  was  not  adverse  to  the  owner, 
but  by  his  permission,  or  indulgence,  or 
as  liis  tenant.  Heirs  of  Marr  v.  Gilliam, 
1  Cold.  488. 

Under  §  254  of  the  (Cal.)  Practice  Act, 
one  tenant  in  common,  in  actual  possession, 
may  maintain  an  action  to  determine  the 
validity  of  an  adverse  claim  by  a  co- 
tenant.  Ross  V.  Heintzen,  oG  Cal.  313. 
A  tenant  in  common  can  recover  damages 
for  an  ouster  by  a  cotenant.  Carpentier 
V.  Mitchell,  2'.)  Cal.  330. 

A  tenant  in  common,  who  has  denied 
his  cotenant  possession  in  common,  and 
claims  to  be  sole  owner  under  a  convey- 
ance from  a  hostile  source,  is  not  entitled 
to  notice  to  quit.  Clark  v.  Crego,  47 
Barb.  5'.i9. 

In  a  real  action  by  one  coti'uant  against 
the  other,  on  ]ilea  of  mil  i/issiisin,  the  de- 
mandant shall  jirevail,  if  he  show  title  to 
an  individual  i>art  of  the  land.  Lyford  i^. 
Thm-ston,  Hi  N.  II.  o'.r.l. 

Where  the  defendant  in  a  real  action 


between  tenants  in  common  pleads  the 
general  issue  alone,  lie  cannot  give  in 
evidence  that  he  "  had  never  ousted  the 
plaintiff  of  his  ])ortion  of  the  premises,  or 
in  any  way  hindered  his  taking  possession, 
but  had  only  been  in  possession  of  the 
same  as  tenant  in  common  with  tlieplain- 
tUY."     Billings  v.  Gibbs,  55  Maine,  238. 

Deeds  vesting  merely  an  undivided  in- 
terest in  land  will  not  support  a  plea  of 
the  Statutes  of  Limitation  of  thri'e  and  live 
years  against  the  title  of  the  owner  of  the 
other  undivided  interest.  Kelly  v.  Medhu, 
2(1  Tex.  48. 

In  ejectment  by  a  tenant  in  common 
for  an  undivicU-d  mterest  in  a  mine,  aver- 
ring that  the  defendant  had  entered  into 
and  withheld  possession  ;  held,  the  plaintiff 
must  not  only  prove  title,  but  a  demand 
to  be  let  into  the  possession  ami  refusal, 
or  an  ouster.  Ilebrard  v.  Jellerson,  33  Cal. 
2'JO.  In  ejectment  brought  by  a  tenant 
in  common  against  a  cotenant,  a  finding 
of  a  demand  to  be  let  into  possession  and 
a  refusal  does  not  amount  to  a  finding  of 
an  ouster.  Adverse  ])ossession  of  land 
loses  its  hostile  character  where  the  party 
in  possession  becomes  a  tenant  in  com- 
mon in  the  ownership  of  the  property.  In 
ejectment  against  one  who  took  ))ossession 
wrongfully,  and  who  afterwards  became  a 
tenant  in  common  with  the  ])laintitt'  in 
ownership,  the  ])laintifi'  cannot  recover 
damages  which  accrued  jtrior  to  the  de- 
fendant's being  a  teiumt  in  common,  or 
while  his  possession  as  such  tensint  was 
not  adverse,  nor  rents  and  mesne  profits 
during  the  latter  period,  but  he  can 
recover  damages  accruing  after  the  co- 
tenant's  ])()ssession  became  adverse.  Car- 
pentier V.  Mendenhall,  28  Cal.  484. 

A,  being  a  tenant  in  common,  conve^'ed 
to  B,  his  cotenant,  who  afterwards  con- 
veyed to  C.  C,  to  recover  possession,  sued 
D,  a  disseisor,  but  failed,  because  B  was 
disseised  at  the  time  of  making  the  convey- 
ance. A  and  B  thereupon  sued!);  but, 
as  A  had  conveyed  to  B  before  D's  dis- 
seisin commenced,  the  action  was  de- 
feated. B  thereujjon  sued  alone.  Held, 
the  former  judgments,  and  the  grounds  of 
them,  were  admissible  against  1),  to  show 
that  his  disseisin  commenced  after  the  con- 
veyance from  A  to  B,  and  betoie  the  con- 
veyance from  1?  to  C,  and  that  the  action 
might  therefore  be  maintained.  Also  that 
evidence  tluit  B,   after  conveying  to  C, 


202 


DISSEISIN,   EJECTMENT,   REAL   ACTION. 


[book  II. 


ises  with  such  substantial  accuracy,  that  they  can  be  identified  by 
application  of  the  evidence  to  the  description.^  (a) 

1  Munson  v.  Munson,  30  Conn.  425  ;     man  n.  Brown,  50  INIaine,  139  ;  Johnson 
Riley  v.  Smith,  9  Allen,  370.     See  Wy-    v.  Nevill,  65  N.  C.  677. 


took  back  a  conveyance  from  C,  was  im- 
material to  affect  B's  title.  Barry  v. 
Adams,  14  Allen,  208. 

An  entr}'  upon  common  land,  under  a 
license  from  one  of  the  cotenants,  will  be 
presumeil  not  to  be  unlawful  or  adverse 
to  the  others.  Berthold  v.  Fox,  13  Minn. 
501. 

A  mortfjagor  in  possession  cannot,  in  a 
suit  against  him  by  his  mortgagee  for  pos- 
session, plead  special  non-tenure.  Marsh 
V.  Smith,  18  N.  H.  366. 

The  owner  of  tlie  equity  of  redemption 
may  maintain  an  action  for  possession 
against  any  one  except  the  mortgagee, 
and  those  claiming  under  him.  Sdnson 
V.  Ross,  51  Maine,  556. 

If,  after  a  grant  upon  condition  subse- 
quent, the  estate  of  the  grantor  is  assigned 
under  insolvent  laws  ;  tlie  grantor  cannot 
maintain  a  writ  of  entry  for  breach  of  tlie 
condition.    Stearns  v.  Harris,  8  Allen,  597. 

Ejectment  for  land  in  the  possession  of 
an  em}>loye  should  be  brouglit  against 
the  employer.  Hawkins  v.  Reichert,  28 
Cal.  534. 

Employe's  of  the  person  claiming  title 
are  not  occupants,  witliin  the  meaning  of 
tlie  ejectment  law.  Chiniquy  v.  Catholic, 
41  111.  148. 

In  ejectment,  it  is  entirely  discretionary 
with  the  court  to  allow  a  claimant  to  be 
made  a  formal  party,  or  require  him  to 
detend  in  the  name  of  his  subtenants. 
Richardson  v.  Harvey,  37  Ga.  224. 

Tlie  party  claiming  as  owner,  and  de- 
fending the  title  of  his  tenant  in  posses- 
sion, is  properly  a  party  to  the  action  ; 
and  his  declarations  of  title  and  acts  in 
defending  his  tenant  constitute  him  a  tort- 
feasor with  his  tenant.  He  cannot  after- 
wards insist  that  he  is  wrongly  joined  as 
a  defendant.  Abeel  v.  Van  Gelder,  36 
N.  Y.  513. 

Under  the  (Va.)  Code,  c.  135,  §  5,  "  if 
a  lessee  be  made  a  defendant  at  tlie  suit 
of  a  party  claiming  against  the  title  of  his 
landlord,  such  landlord  may  appear  and 
be  made  a  defendant  with  or  in  the  place 
of  his  lessee  ;  "  if  a  tenant  is  sued  in  eject- 
ment for  the  land,  his  landlord  may  be 
made  a  party  defendant.  Mitchell  v.  Ba- 
ratta,  17  Gratt.  445. 

One  who  comes  in  as  landlord  to  de- 
fend an  ejectment  cannot  object  that  no 


notice  to  quit  has  been  given  to  the  origi- 
nal defendant.  Eoust  v.  Trice,  8  Jones, 
490. 

Under  the  statutes  of  New  York,  dis- 
tress for  rent  being  abolished,  a  condition 
in  a  grant,  of  re-entry  for  non-payment  of 
a  perpetual  rent,  is  assignable  ;  and  the 
assignee  can  maintain  ejectment  without 
a  demand,  where  one  half  year's  or  more 
rent  is  in  arrear.  Van  Rensselaer  v.  Slin- 
gerlaijd,  26  N.  Y.  12  Smith,  580. 

When  a  landlord  defends  an  action  of 
ejectment  in  place  of  his  tenant,  he  can 
only  make  such  defence  as  his  tenant 
could  make.  Sinclair  v.  Worthy,  1  Wins. 
No.  1,  114. 

When  the  lands  are  in  possession  of  the 
tenant,  he  is  the  proper  party  defendant. 
If  the  landlord  is  made  defendant,  the 
court,  on  the  hearing,  will  on  motion  order 
a  nonsuit  as  to  him.  A  and  B,  tenants,  and 
C,  landlord,  were  jointly  sued.  A  and  B 
were  defaulted,  and  C  answered.  Held, 
the  plaintiff,  before  trial,  could  dismiss 
the  action  as  to  C,  and  take  judgment 
against  A  and  B.  Where  a  landlord,  jointly 
sued,  has  answered,  and  had  the  action  dis- 
missed as  to  himself,  but  judgment  has 
been  rendered  by  default  against  the 
tenant ;  the  court  cannot,  on  motion  of 
the  landlord,  order  the  proceedings  to  be 
stayed,  under  a  writ  of  restitution.  The 
landlord  may  in  all  cases,  in  which  liis 
title  is  drawn  in  issue,  assume  the  de- 
fence and  defend  the  action  in  the  name 
of  his  tenant,  but  not  in  his  own  name ; 
and,  if  the  tenant  has  permitted  a  default, 
he  may,  upon  proper  showing  and  moving 
in  the  name  of  the  tenant,  have  the  de- 
fault set  aside.  Dimick  v.  Deringer,  32 
Cal.  488.  See  Harkey  v.  Houston,  05 
N.  C. 137. 

(n)  In  California,  a  complaint,  that  the 
plaintiff  was  in  possession,  and  lawfully 
entitled  to  the  possession,  at  the  time  he 
was  evicted  by  the  defendant,  is  a  declara- 
tion in  ejectment.  Ramirez  r.  Murray,  4 
Cal.  293.  The  plaintiff  need  not  aver 
title  ;  an  averment  of  prior  possession  and 
an  ouster  is  sufficient,  for  prior  posses- 
sion is  evidence  of  title,  and  cannot  be 
made  to  yield  to  mere  color  of  title. 
Norris  v.  Russell,  5  Cal.  249.  But  the 
declaration  must  allege  title  or  at  least 
actual  possession,  not  merely  occasional 
use,  by   the   plaintiff,  and   a  continued 


BOOK   II.]  PLEADING.  203 

§  128.  Where  the  description  of  the  premises  in  the  consent 
rule  is  "  about  five  chains  and  twenty-five  links  in  depth,"  and 
in  fact  the  lot  is  a  few  links  deeper,  the  description  entitles  the 
plaintiiF  to  recover  the  premises  as  desci-ibed  in  his  deed.^  But 
ejectment  cannot  be  maintained  for  an  undesignated  part  of  a 
lot.2  ArfH  the  description  in  the  declaration  will  not  be  aided 
by  reference  to  any  other  instrument.^  So  where  the  writ  was 
indescriptive  except  by  adjoiners,  and  the  verdict  was  general  for 
the  land  described  in  the  writ ;  the  judgment  was  reversed,  on 
the  ground  that  the  finding  was  too  vague  to  sustain  it.*  So 
where  the  purpose  of  an  ejectment  is  to  settle  a  disputed  boun- 
dary;  a  description  of  the  plaintiff's  land,  as  bounded  on  one  side 
by  the  defendant's,  is  bad.^  So  a  declaration,  after  describing  the 
tract  owned  by  the  plaintiff,  and  giving  its  boundaries,  alleged 
that  the  defendant  unlawfully  withheld  possession  "  of  two  hun- 
dred acres  in  and  adjacent  to  the  waters  of  Hughes'  and  Bun- 
nel's  runs ;  it  being  a  portion  of  the  above-mentioned  tract  of 
eleven  hundred  acres  of  land."  Held  defective  for  uncertainty  ; 
and  the  verdict,  following  the  declaration,  was  set  aside.** 

§  129.  The  declaration  must  allege  a  seisin  of  the  fee  or  free-hold 
(or  for  years),  according  to  the  facts.'^  (a)  An  action  for  fee-simple 
is  not  sustained  by  proof  of  an  estate  tail,  under  (Maine)  Rev.  Sts. 
c.  104,  §  328.^    So  an  undivided  interest  cannot  be  recovered,  where 

1  Wliite  V.  Woodruff.  4  Zabr.  753.  "  Hitchcox  ?•.  Rawson,  14  Gratt.  526. 

2  Miller  V.  Smith,  88  rerin.  386.  ^  Flajjg  v.  Bean,  5  Fost.  49.     See  34 

3  Fiauj,^  n  Bean,  5  Fost.  49.  Maine,  566. 

■*  Hunt  ?•.  jNIcFarland,  38  Penn.  69.  **  Hamilton  v.  "Wentworth,  58  Maine, 

5  Davis  V.  Judge,  44  Verm.  500.  101. 

adverse  holding  by  the  defendant.  Stein-  In  Wisconsin,  an  allegation  of  posses- 
back  V.  Fitzpatrick,  12  Cal.  295.  And  sion  is  unnecessary.  Herrick  v.  Graves, 
the  demandant  must  allege,  and,  if  tra-  16  Wis.  157. 

versed,  i)rove,  a  sei.sin,  either   in  liimself        In  Minnesota,  a  right  of  possession  is 

or  his  ancestors,  tlirougli  whom  he  claims  ;  alleged.      Armstrong    v.    Hinds,   8    Min. 

and,  also,  in  general,  that  he  was  seised  by  254. 

taking  tlie  esplees  or  jirofits.  Payne  r.  In  an  information,  under  ISIass.  Rev. 
Treadwell,  5  Cal.  310.  The  complaint  Sts.  c.  108,  to  recover  lands  below  low- 
need  not  allege  ownership  at  the  com-  water  mark,  and  more  tlian  a  hundred  rods 
niencement  of  the  action.  An  allegation  below  high-water  mark,  an  allegation 
of  previous  title  and  an  ouster  is  sutti-  that  the  Commonwealth  is  owner  in  fee 
cient.  Salmon  v.  Symonds,  24  Cal.  266.  of  all  said  cliannels,  lands,  and  Hats, 
The  latest  cases  in  California  decide  that  is  sufficient.  Carr  v.  Koxbury,  9  Gray, 
no  jiarticular  form    is    necessar}-   in   the  451. 

complaint.     Caperton  v.  Schmidt,  2(>  Cal.         (a)  And  a  verdict  must  be  equally  spe- 

490.     But  that  it  must  not  state  evidence,  cific,  and  follow  the  statute.     Kawlings  v. 

Depuy  V.  Williams,  26  Cal.  313.  Bailey,  15  111.  178. 


204  DISSEISIN,    EJECTMENT,    REAL   ACTION.  [bOOK   II. 

the  declaration  claims  title  to  the  whole.i  But  a  declaration,  de- 
manding the  whole  of  a  tract  in  fee-simple,  may  be  amended,  so 
as  to  demand  a  life-estate  in  an  undivided  part  only."^  An  aver- 
ment of  title  in  fee  is  sustained  by  proof  of  possession  of  the 
plaintiff,  a  mortgagee,  under  an  agreement  with  the  mortga- 
gor.3  And  if  the  plaintiff  shows  title  to  any  part  of  the  land 
contained  in  the  demise,  which  is  in  the  defendant's  possession, 
the  jury  may  render  a  general  verdict;  or  they  may,  under  the 
direction  of  the  court,  find  specially,  so  as  to  enable  the  parties  to 
run  their  lines.'^  (a) 

§  130.  To  enable  a  plaintiff  to  recover  on  prior  possession,  he 
must  allege  and  prove  an  actual  ouster,  notwithstanding  a  default 
through  the  mistake  or  inadvertence  of  counsel.^  Thus  a  decla- 
ration, "  that  the  plaintiffs  have  laAvful  title  as  owners  in  fee-simple 
of  the  premises,  and  that  the  defendant  is  in  possession,  and  un- 
lawfully withholds  the  same,"  is  insufficient.  Although  a  statute 
have  dispensed  with  the  old  form  of  pleading,  and  the  allegation 
of  a  fictitious  demise;  still  facts  must  be  pleaded,  sufficient  to 
show  the  plaintiff's  right  to  recover,  and  not  mere  conclusions  of 
law.^ 

§  131.  In  New  York,  tlie  complaint,  in  an  action  to  recover  pos- 
session of  real  estate,  stated,  that  the  legal  title  was  in  the  plaintiff 
as  owner  in  fee,  and  that  the  defendant  was  in  possession,  and 
unlawfully  withheld  possession  from  the  plaintiff,  and  that  the 
plaintiff  demands  that  the  defendant  may  be  adjudged  to  render 
up  possession  to  the  plaintiff,  and  pay  damages  for  the  detention. 
Held,  a  sufficient  declaration  under  the  Code."  So  a  complaint, 
that,  on  a  day  named,  one  A  was  in  possession  and  seised  in  his 
own  right  in  fee,  and  died  so  seised ;  that  the  complainants  are 
his  only  heirs-at-law,  and  as  such  are  entitled  to  possession;  and 

1  Rupert  V.  Mark,  15  111.  540;  Petty  w.  *  Kay  v.  Glover,  7  Jones,  41. 

Malier,  14  B.  Men.  246 ;  Murphy  v.  Orr,  ^  Watson  v.  Zimmerman,  6  Cal.  46. 

32  111.  489.  6  Payne  v.  Treadwell,  5  Cal.  310. 

'•i  Howe  r.  Wildes,  34  Maine,  566.  7  Walter  v.  Lockwood,  23  Barb.  228. 

3  Chapman  v.  Delaware,  3  Lans.  261. 

(ff)  Colorable    title    in    the    plaintiff's  for  the  whole,  see   Hipp  v.   Forester,  7 

grantor  to  the  wliole  tract  being  shown,  Jones,  599. 

evidence  of  his  possession  and  occupancy  Where  the  plaintiff  claimed  three  undi- 

by  mining  on  any  portion  of  it  is  admis-  vided  fourth  parts  of  certain  tracts,  ajudg- 

sible.      Turner  v.    Reynolds,    23    Penn.  nient  that  he  do  recover  his  term  aforesaid 

199.  in  said  tracts  of  land  is  correct.     Carroll 

As  to  possession  of  a  part,  and  ejectment  v.  Carroll,  16  How.  275. 


BOOK  II.]  PLEADING.  205 

that  the  defendant  unlawfully  holds  the  premises,  claims  title,  and 
refuses  to  give  them  up,  though  requested.^ 

§  131  a.  The  rule,  that  possession  \?,  j)rimd  facie  evidence  of  title, 
has  no  application  to  pleading ;  and,  where  a  title  is  necessary,  it 
is  not  enough  to  allege  possession.'^  It  is  sufficient  to  claim  in 
fee-simple.'^  It  is  held  unnecessary  to  allege  that  the  defendant 
is  in  possession  at  the  commencement  of  the  action.'* 

§  131  h.  A  complaint  in  an  action  brought  for  possession,  wjiich 
alleges  that  the  defendant  entered  and  took  possession,  althongh 
notified  by  the  plaintiff  not  to  enter,  is  not  sufficient,  the  forcible 
entry  and  detainer  not  being  alleged.^ 

§  131  c.  A  plaintiff's  petition  represented,  that  he  was  the 
owner  of  a  certain  square  of  ground  in  the  town  of  Carrollton, 
with  all  the  buildings  and  improvements  thereon ;  that  he  had 
always  been  in  possession  and  enjoyment  of  the  whole  of  said 
square,  receiving  rents  from  one  A  for  a  portion  of  said  square  on 
which  the  buildings  existed,  up  to  the  first  day  of  March,  1859; 
and  praying  that  his  title  to  the  whole  of  said  square  might  be 
recognized.  Held,  a  petitory  action,  and  that  the  plaintift'  was 
bound  to  make  out  his  title.^ 

§  131  d.  The  plaintiff  may  recover  if  he  shows  paramount  title 
to  any  part  of  the  premises  described,  but  not  without  evidence 
of  a  sufficient  interest  to  maintain  the  action,  in  the  definite  tract 
for  which  judgment  is  rendered." 

§  131  e.  A  plaintiff  who  declares  for  an  estate  in  fee  cannot  re- 
cover a  less  interest  or  different  estate.^ 

§  131/.  The  omission  to  state  in  the  declaration  the  extent  of 
the  plaintiff's  claim,  whether  the  whole,  or  an  undivided  interest 
in  the  land,  is  not  fatal  on  demurrer.  And,  after  judgment,  any 
defects  or  imperfections  in  matters  of  form,  may  be  amended 
by  the  appellate  court,  or  the  court  below,  if  substantial  justice 
require  it.^ 

§  lol  g.  An  allegation,  that  on  a  day  named  the  plaintiff"  was 
possessed  of  certain  lands  therein  described,  which  said  prem- 
ises the  said  plaintiff  claims  in  fee-simple  absolute,"  and  that,  he 

1  Garner  v.  Manhattan,  &c.,  G   Duer,  ^  Ferguson  v.  Carter,  40  Ala.  007. 

539.      See   Bockee   v.    Crosby,   2  I'aine,  "  Millauilon  y.  lianney,  18  La.  An.  196. 

432;   Fraser  v.  Weller,  0  M'L.  11.  ■<  Benz  v.  Hinct^,  3  Kans.  3'.i0. 

•^  Meriden  v.  Wliedon,  31  Conn.  118.  ^  j^y^^  ^,.  Kain,  3G  111.  3(;2. 

3  Parr  v.  Van  Horn,  38  111.  226.  9  Royston  v.  Wear,  3  Ik-ad,  9. 

4  Hcrrick  i\  Graves,  10  Wis.  157. 


206  DISSEISIN,    EJECTMENT,    REAL    ACTION.  [bOOK   II. 

"being  possessed  thereof  and  being  so  the  owner  thereof  as 
aforesaid,"  the  defendant  entered  ;  amounts  to  an  averment  of  title 
in  fee-simple.^ 

§  131  A.  The  description,  in  a  writ  of  entry,  of  the  demanded 
premises,  as  "a  certain  parcel  of  land,  with  the  buildings  thereon, 
situate  in  Boston,  and  bounded  southerly  by  Eliot  Street  twenty 
feet;  westerly  on  a  passage-way  six  feet  and  nine  inches  in  width, 
sixty-one  feet  eleven  inches ;  northerly  on  a  passage-way  three 
feet  wide,  nineteen  feet  nine  inches ;  and  easterly  by  a  line 
through  the  centre  of  the  brick  partition  wall,  sixty-one  feet  two 
inches  ;  with  the  appurtenances  thereto  belonging,"  is  sufficiently 
certain.^ 

§  131  i.  Under  the  statutes  of  Minnesota,  a  plaintiff,  in  an  action 
to  recover  real  property,  may  unite  several  causes  of  action,  with 
or  without  damages,  for  the  withholding  such  property,  and  the 
rents  and  profits.  He  must  aver  ownership  or  right  of  possession 
in  himself  at  the  time  of  the  alleged  wrong,  or  at  the  commence- 
ment of  the  action.'^ 

§  131  J.  A  declaration  in  ejectment  and  a  petition  for  partition 
cannot  properl}''  be  united  in  the  same  count ;  and  one  or  the 
other  will  be  rejected  as  surplusage.'* 

131  k.  In  the  federal  courts  for  the  California  circuit  (which 
have  adopted  the  practice  in  the  State  courts  under  the  State  acts 
regulating  proceedings  in  civil  cases),  not  only  may  distinct  par- 
cels of  land,  if  covered  by  one  title,  be  included  in  one  complaint 
or  declaration,  but  with  a  demand  for  these  may  be  united  a 
claim  for  their  rents  and  profits,  or  for  damages  for  withholding 
them.  Under  these  acts,  the  provision  as  to  the  description  by 
metes  and  bounds  is  directory  only.  When  the  pleadings  do  not 
state  the  value  of  the  property,  it  may  be  shown  at  the  trial.^ 

§  131  I.  In  a  city,  having  a  known  system  of  notation  regulated 
by  municipal  laws,  recognized  in  the  transactions  of  general  busi- 
ness, and  acted  upon  by  every  one ;  a  parcel  of  ground  or  the 
messuage  thereon  may  be  described  by  a  number.^ 

§  131  m.  A  complaint,  alleging  that  the  premises,  described 
accurately,  were  those  leased  to  the  plaintifi'by  a  lease,  a  copy  of 
which  is  filed  with  the  complaint,  and  which  describes  the  land, 

1  Marshall  v.  Shafter,  32  Cal.  176.  5  Beard  v.  Federy,  3  Wall.  478. 

2  Ililey  V.  Smith,  9  Allen,  370.  «  Flanigen  v.  Philadelphia,  61   Penn. 

3  Armstrong  v.  Hinds,  8  Minn.  254.  491. 
*  Moreau  v.  Detchemendy,  41  Mis.  481. 


BOOK  II.]  PLEADING.  207 

though  not  very  definitely,  is  sufficient.  But  the  land  mentioned 
in  the  complaint  must  be  identified  witli  that  described  in  the 
lease. 1 

§  131  n.  In  an  ejectment  for  the  "  south  twenty-eight  feet"  of 
a  village  lot,  it  appeared  that  the  lot  was  rectangular,  and  two  of 
its  boundary  lines  ran  east  by  thirty-eight  degrees  north,  the 
other  two  running  north  by  thirty-eight  degrees  west.  Held, 
under  this  description,  if  the  plaintiff  should  recover  judgment, 
the  sheriff  could  not  put  him  in  possession,  and  therefore  he  must 
be  nonsuited.2 

§  131  0.  A  complaint,  which  alleges  the  seisin  in  fee  of  the 
plaintiff  at  the  time  of  ouster,  need  not  aver  his  seisin  at  the 
commencement  of  the  action."^ 

§  131  p.  The  court  may  strike  out  from  a  complaint  matters 
of  evidence  and  unnecessary  description  of  the  premises.**  Such 
averments  should  be  stricken  out,  even  where  they  consist  of  a 
deraignment  of  title. ^  So  there  is  no  requirement  in  §  3570  of  the 
(Iowa)  Revision,  that  a  plaintiff  shall  annex  to  his  petition  the  evi- 
dence of  his  title.*^  Thus  the  plaintiff  may  prove  fraud  in  the  entry 
of  the  defendant,  though  not  alleged."  So  a  party  claiming  under 
a  deed,  which  is  subject  to  prior  covenants  of  the  grantor  and 
grantee,  need  not  set  out  such  covenants.^  So  plaintifls  in  eject- 
ment to  recover  a  mining  claim,  need  not  set  forth  the  rules  and 
customs  of  mining  on  which  their  title  partly  depends.^ 

§  131  5'.  A  writ  of  entry  need  not  allege  that  the  land  is  in  the 
county  in  which  the  action  is  brought,  if  it  is  described  as  being 
in  a  town  which  is  within  the  county .^*^ 

§  131  r.  In  an  action  against  a  tenant  at  sufferance,  the  com- 
plaint need  not  state  the  tenancy,  its  termination,  notice,  <fec.  If 
the  pleadings  show  such  tenancy,  it  will  be  presumed,  after  judg- 
ment, that  it  was  terminated  according  to  law.^^ 

§  132.  A  plea  of  the  general  issue  admits  the  defendant's  pos- 
session.^^    The  title  only  comes  in  question.^^  (a) 

1  Guy  V.  Barnes,  24  Ind.  345.  9  Colman  v.  Clements,  23  Cal.  245. 

-  Orton  V.  Noonan,  18  Wis.  447.  •"  Martin  r.  Martin,  51  iMaine,  306. 

3  Salmon  v.  Svmonds,  24  Cal.  260.  "  M'Cartliy  v.  Yale,  3y  Cal.  585. 

*  AVillson  V.  Cleaveland,  30  Cal.   192.  ''^  Graves  v.  Amoskcag,  &c.,  44  N.  H. 

5  Larco  V.  Casaneuava,  30  Cal.  660.  '  462  ;  Burridge  v.  Fogg,  8  Ciisli.  183  ;  King 

«  Boardman   v.   Beckwitli,    18    Iowa,  v.  Kent,  2'J  Ala.  642";  43  iMaine,  280. 

292.  13  Wyman  v.   Brown,   50  Maine,   139; 

^  Depuy  V.  Williams,  26  Cal.  309.  Blake  v.  Dennett,  49  ib.  102. 
8  Lockwood  V.  Mills,  39  111.  602. 

(rt)  The  filing  of  a  plea  is  a  waiver  of  which  is  not  withdrawn  by  withdrawing 
service,  and  amuunts  to  a  full  appearance,     the  plea.     Dart  t- .  Hercules,  34  111.  395. 


208 


DISSEISIN,   EJECTMENT,   REAL   ACTION. 


[book  II, 


§  132  a.  The  tenant  cannot  avail  himself  of  a  lease  for  years, 
under  a  plea  of  nul  disseisin.^ 

§  132  b.  The  legal  effect  of  a  plea  of  nul  disseisin,  since  (Mass.) 
St.  1836,  c.  273,  is  an  admission  of  every  thing  except  the  de- 

1  Trask  v.  Wheeler,  7  Allen,  109. 


A  plea  in  abatement  is  admissible.  Sect. 
13  of  the  (Va.)  Code,  c.  135,  giving  tlie 
right  to  "  plead  the  general  issue  only," 
refers  merely  to  matters  in  bar  of  the 
action.  A  defendant,  admitting  that  he 
was  mistaken  as  to  the  matter  pleaded  in 
abatement,  submitted  the  cause  on  the 
issue  ujx)!!  the  plea  to  the  court,  upon  the 
admission,  and  at  the  same  time  asked 
leave  to  file  a  plea  of  "  not  guilty,"  tlie 
plaintiff  objecting  until  the  issue  in  fact 
submitted  to  the  court  on  the  plea  in 
abatement  had  been  decided  by  the  court. 
Held,  after  the  admission,  the  plea  in 
abatement  was  waived  and  should  have 
been  set  aside,  and  the  plea  of"  not  guilty  " 
received.  James  ;;.  Robinson,  16  Graft. 
434. 

It  is  no  answer  to  an  ejectment  in  a 
county  court,  that  anotlier  ejectment  for 
the  same  cause  is  pending  in  a  superior 
court.  Bissill  v.  Williamson,  7  Hurl.  & 
Nor.  391. 

Nor  a  judgment  in  a  suit  for  forcible 
entry  of  the  same  premises.  Carter  v. 
Scaggs,  38  Mis.  302. 

An  estoppel  need  not  be  replied  spe- 
cially to  a  plea  of  the  Statute  of  Limita- 
tions.   McNamee  v.  Moreland,  26  Iowa,  96. 

An  estoppel  in  pais  may  be  set  up  under 
the  (N.  Y.)  Code.  Corkhill  v.  Landers,  44 
Barb.  218. 

Filing  a  replication,  controverting  an 
allegation  of  the  defendant  that  he  is  in 
possession,  does  not  entitle  him  to  judg- 
ment on  the  pleadings.  Sankey  v.  Noyes, 
1  Nev.  68. 

A  withholding  of  possession  is  neces- 
sarily denied  by  a  denial  of  entry  and 
ouster.     Hawkins  v.  Reichert,  28  Cal.  534. 

In  an  action  under  (Wis  )  Rev.  Sts.  c. 
141,  §  29,  by  a  party  who  claims  that  he 
is  in  possession,  and  has  the  legal  title  to 
compel  a  claimant  to  release  his  claim ; 
the  objection,  that  the  plaintiff  had  not 
at  the  commencement  of  the  action  actual 
possession,  must  be  distinctly  taken  by 
the  answer,  and  before  going  to  trial  on 
the  merits.  An  answer  which  merely  de- 
nies the  plaintiff's  allegations  as  to  posses- 
sion, and  alleges  that  the  defendant  was 
then  in  possession,  and  that  the  plaintiff's 
claim  of  title  is  barred  by  the  Statute  of 
Limitations,  is  not  sufficient.  Jones  v.  Col- 
lins, 16  Wis.  594. 


A  general  denial  of  title  is  overcome  by 
a  special  answer,  which  admits  that  title, 
by  showing  that  the  defendant  entered 
and  still  holds  under  a  contract  for  pur- 
chase.    Miller  v.  Larson,  17  Wis.  624. 

An  answer,  of  a  purchase  at  a  tax  sale, 
and  a  conveyance  from  a  municipal  cor- 
poration, must  state  the  facts  necessary 
to  the  validity  of  such  conveyance.  Nicoll 
V.  Fash,  59  Barb.  275. 

A  vendee,  who  enters  into  possession 
under  a  contract  of  purchase,  and  after- 
wards fails  to  pay  the  price,  is  not  within 
the  terms  of  (N.  C.)  Rev.  Code,  c.  31, 
§  48,  requiring  tenants  to  give  bonds  before 
pleading  in  ejectment.  Cox  v.  Gray,  Pliill. 
(N.  C.)  L.  488. 

Under  the  Code  of  Georgia,  an  intruder 
cannot  retain  possession,  after  the  affida- 
vit, tendered  by  him  in  obedience  to  the 
Code,  has  been  pronounced  defective. 
Hass  V.  Gardner,  36  Ga.  477. 

The  (N.  C.)  Act  of  1856,  c.  14,  does  not 
authorize  a  defendant  in  ejectment,  where 
the  plaintitt'  has  filed  an  affidavit  that  he 
entered  as  his  tenant,  to  plead,  without 
giving  security  for  costs,  by  filing  an  affi- 
davit that  he  is  unable,  on  account  of  his 
poverty,  to  do  so.  Cowles  v.  Carter,  8 
Jones,  L.  381. 

An  admission,  that  the  defendant  "  was 
in  possession  "  of  the  premises,  applies  to 
the  time  of  bMnging  the  suit.  Wright  v. 
Dunham,  13  Mich,  414. 

A  plaintiff  may  rely  upon  an  admission, 
in  the  answer,  of  title  in  his  grantor  prior 
to  the  date  of  his  deed,  without  thereby 
admitting  the  further  allegations  as  to  a 
grant  of  the  same  or  otiier  lands  by  the 
same  grantor  to  the  defendant.  Orton  v. 
Noonan,  19  Wis.  350. 

A  title  acquired  by  the  defendant  pend- 
ing the  suit  should  be  set  up  by  a  supple- 
mental answer.  McMinn  v.  O'Connor, 
27  Cal.  238. 

A  defendant  may  avail  himself  of  a 
homestead  right,  under  a  plea  of  not 
guilty,  but  not  by  special  plea.  Johnson 
V.  Adleman,  35  111.  265.  That  the  deed  or 
mortgage  does  not  release  the  right  of 
homestead,  may  be  interposed  as  a  bar, 
in  ejectment  against  the  grantors  or  mort- 
gagors. Connor  v.  Nichols,  31  111.  148 ; 
Smith  z.'.  Miller,  ib.  157 ;  Thornton  v. 
Boyden,  ib.  200. 


BOOK    II.]  PLEADING.  209 

mandant's  title  ;  and  a  specification  by  tlie  tenant,  tliat  lie  is  not 
in  actual  possession,  but  is  legal  owner  under  a  deed,  does  not 
modify  this  admission.^ 

§  132  c.  Proof,  that  the  tenant  in  a  real  action  took  and  recorded 
a  deed  from  a  tax-collector,  is  sufficient  primd  facie  to  establish  a 
disseisin,  under  a  plea  of  nul  disseisin,  with  a  specification  of  non- 
tenure.^ 

§  132  d.  Proof  of  a  tenancy  at  will  cannot  be  admitted  under  a 
plea  of  the  general  issue.^  Nor  an  outstanding  title  purchased 
of  a  third  person  since  the  date  of  the  writ.'^ 

§  132  e.  Under  the  general  issue,  the  real  contest  is,  which  party 
can  show  the  better  title  in  himself.'' 

§  132/.  An  answer,  that  the  defendant  "is  not  guilty  of  the 
supposed  trespasses  and  ejectment  in  the  complaint  mentioned, 
nor  of  any  part  thereof,"  amounts  to  a  general  denial  only,  and, 
when  the  complaint  is  sworn  to,  raises  no  issue.  An  answer 
filed  twelve  days  after  the  complaint,  that  the  defendant  is  not  in 
possession,  and  that  he  does  not  withhold,  nor  has  he  ever  with- 
held, &c.,  is  not  a  sufficient  denial  that  he  was  in  possession  when 
the  action  was  brought.^ 

§  132  g.  Matter  which  does  not  affect  the  title,  but  only  the 
further  prosecution  of  the  suit,  as  it  is  then  constituted,  as  mar- 
riage or  (leatli,  or  the  plaintiff's  taking  possession,  must  be  pleaded, 
or  otherwise  specially  brought  to  the  notice  of  tiie  court.  But 
matter  that  goes  to  affect  the  title,  as  the  confirmation  of  an  in- 
fant's deed,  may  be  given  in  evidence  under  the  general  issue." 

§  132  h.  Under  the  general  issue  the  defendant  may  prove  a 
conveyance  from  the  plaintiff's  grantor  to  A,  although  the  de- 
fendant does  not  claim  under  A.^  Or  that  the  plaintiff's  grantor 
had  no  title  or  possession.  Thus  he  may  prove,  that,  before  levy 
of  an  execution  upon  the  land  in  favor  of  such  grantor,  though 
after  an  attachment,  the  debtor  became  a  bankrupt  and  was  not 
in  possession  at  the  time  of  levy.'-^ 

§  132  i.  A  plea  of  not  guilty  raises  the  general  issue;  and  under 
it  coverture  may  be  set  up.^*^ 

1  Johnson  v.  Boardman,  6  Allen,  28.  "^  McCormic   v.    Leggett,   8  Jones,  L. 

2  lb.  425. 

8  Leavitt  v.  Leavitt,  47  N.  II.  329.  »  Morse  v.  Sleeper,  58  Maine,  ;^29. 

*  Clark  V.  Pratt,  55  iMaine,  546.  »  Poor  v.  Larraboc,  58  Maine,  543. 

5  Wynian  v.  Brown,  50  Maine,  139.  •»  Black  v.  Tricker,  52  Penn.  436. 


«  Schenk  v.  Evoy,  24  Cal.  104. 


14 


210  DISSEISIN,   EJECTMENT,   REAL    ACTION.  [BOOK  II. 

§  132  y.  Under  a  general  denial  of  the  complaint,  the  defend- 
ant can  show  title  out  of  the  plaintiff  at  the  time  of  the  com- 
mencement of  the  action ;  but  not  title  by  adverse  possession  in 
himself.^ 

§  133.  A  denial  that  the  defendant  unlawfully  possessed  is  no 
denial,  and  consequently  is  an  admission,  of  the  material  allega- 
tion that  he  was  in  possession.^  So  where  a  verified  complaint 
charged  an  unlawful  and  wrongful  entry  and  dispossession,  and 
the  answer  denied  that  the  defendant  wrongfully  and  unlawfully 
entered  and  dispossessed  ;  held,  not  the  positive  and  unequivocal 
denial  of  the  entry  and  ouster  required  by  a  verified  complaint 
(Cal.  Pr.  Act,  §  G5),  and  therefore  an  admission  theieof,  and  a 
denial  of  the  wrongfulness  only.^  So  a  complaint  alleged,  that 
the  plaintiff  was  lawfully  seised  and  possessed  on  a  certain  day, 
and  afterwards  the  defendant  entered  the  tract  and  ousted  him. 
Held,  an  answer,  not  guilty  of  the  supposed  trespasses  and  eject- 
ment, raised  no  issue.  And  where  the  complaint  alleges  posses- 
sion on  a  certain  day,  an  answer  that  the  party  is  not  in  possession 
on  a  subsequent  day  is  a  confession.'^ 

§  134.  The  want  of  a  simUlter  is  cured  by  a  verdict;  or  the  de- 
fendant may  add  it,  if  he  chooses,  as  a  matter  of  form.  The  plea 
of  not  guilty  is  the  issue.° 

§  135.  An  answer,  in  an  action  to  recover  possession,  which 
denies  that  the  defendant  is  in  possession,  or  that  there  has  been 
any  demand  of  the  possession  by  the  plaintiff,  or  any  unlawful 
withholding  thereof,  does  not  put  in  issue  the  title  of  the  plaintiff, 
or  raise  the  question  of  adverse  possession.  If  the  defendant  de- 
signs to  question  the  validity  of  the  deed,  under  which  the  plain- 
tiff claims,  to  pass  the  title  to  the  lands  while  a  stranger  was  in 
possession,  claiming  title ;  he  should  so  frame  his  answer,  and  set 
up  a  title  in  himself,  or  title  out  of  the  plaintiff.*^ 

§  136.  If  the  demandant  have  title  and  a  right  of  entry,  his 
allegation  that  he  was  himself  seised  will  be  maintained  in  law, 
upon  the  supposition  that  he  has  entered  and  become  seised 
according  to  his  title,  though  he  may  never  have  had  actual 
seisin.  In  such  case,  upon  the  plea  of  the  general  issue,  the 
defendant  will  be  held    a    disseisor,  though    he    may  not    have 

1  Raynor  ;;.  Timerson,  46  Barb.  518.  "  Schenk  v.  Evoy,  24  Cal.  113. 

2  Burke  v.  Table,  &c.,  12  Cal.  403.  &  Walker  v.  Armour,  2'1  III.  658. 

3  Busenius  v.  Coilee,  14  Cal.  91.  6  ^ord  v.  Sampson,  30  Barb.  183. 


BOOK   II.] 


PLEADING. 


211 


actually  disseised  tlie  demandant,  upon  a  like  supposition  that  the 
demandant  has  entered  and  been  expelled  by  the  defendant. 
Under  the  (New  Hampshire)  Statute  of  Limitations,  whoever  has 
a  right  of  action  has  also  a  right  of  entry ;  and,  upon  plea  of  the 
general  issue,  the  only  question  is  one  of  title.  This  local  prac- 
tice is  confined  in  its  operation  to  a  simplification  of  the  remedy 
by  writ  of  entry,  and  does  not  affect  the  substantial  rights  and  lia- 
bilities of  the  parties  ;  and  whether  the  defendants  in  that  suit  are 
liable  as  tenants  of  the  freehold,  or  as  sole  or  joint  tenants,  when 
the  question  is  raised  by  appropriate  pleas,  is  determined  by  the 
rules  of  the  common  law.^ 

§  137.  As  a  plea  of  the  general  issue  admits  the  disseisin,  the 
tenant  cannot,  under  this  {)lea,  introduce  proof,  that  a  third  per- 
son has  a  present  title  superior  to  that  of  the  demandant,^  or  that 
he  was  a  tenant  of  the  plaintiff.^ 

§  137  «.  A  common  plea  in  ejectment 'is  disclaimer  or  iioji- 
tenured  (a)     The  general  issue  admits  the  tenant  to  be  in  pos- 

1  Tappan  v.  Tappan,  36  N.  H.  98.  ^  Williams  v.  Noiscaux,  43  N.  H.  388  • 

2  Warren  v.  Miller,  38  Maine,  108  ;  Melclier  r.  Flanders,  40  ih.  139.  ' 
Melcher  v.  Flanders,  40  N.  H.  139.                     ■*  See  Tripner  v.  Abrahams,  47  Penn. 

220. 


(rt)  Disclaimer  is  abolished  in  California. 
Ellis  V.  Jeans,  26  Cal.  275. 

In  New  Hampshire,  a  plea  of  non-tenure 
or  disclaimer  is  in  the  nature  of  a  plea  in 
abatement.  It  is  in  the  discretion  of  the 
court  to  allow  such  a  plea  to  be  filed  at 
the  fourth  term  after  the  entry  of  the 
action.  Tappan  v.  Tappan,  11  Fost.  41. 
Non-tenure,  general  or  special,  is  a  good 
plea  in  abatement  to  a  writ  of  entry 
brougiit  to  foreclose  a  mortgage.  But  if 
there  be  no  disclaimer,  the  plaintiff  may 
always  reply,  maintaining  his  writ  ;  and 
if  on  trial  it  appear  that  the  defendant  is 
in  possession  imder  a  title  subject  to  that 
of  the  piaintitf,  the  plaintiff'  will  be  en- 
titled to  judgment.  Hence  a  defeiuhuit 
in  possession  can  only  successfully  plead 
non-tenure  special.  Stark  v.  Brown,  40 
N.  H.  :Uo. 

In  Maine,  nontenure,  being  a  plea  in 
abatement,  must  be  filed  within  the  time 
prescribed  by  the  rules  of  the  court. 
Newliegin  v.  Langley,  39  Maine,  200. 
Non-tenure  must,  by  Stat.  1846,  c.  221, 
be  pleaded  within  the  time  re(piired  for 
filing  pleas  in  abatement ;  and  a  brief  state- 
ment of  non  tenure  is  within  the  rule. 
Young  r.  Tarbell,37  ]\Iaiiie,  509  ;  Eldridge 
V.  Treble,  34  Maine,  148.    . 


In  Massachusetts,  it  is  irregular  to  plead 
the  general  issue  as  to  one  moiety  of  the 
demanded  premises,  and  a  disclaimer  as  to 
the  other.  The  general  issue  should  be 
pleaded  as  to  the  whole  demand,  and  a  dis- 
claimer as  to  part  filed  by  way  of  a  specifi- 
cation of  defence.  But  if  no  objectiim  is 
raised  by  the  demaiiilant,  and  the  latter 
proves  a  deed  from  the  tenant  tohim.-elf  of 
one-half  of  the  i)rcmises  claimed,  this  is 
not  evidence  of  title  in  lum  to  the  whole. 
Fisk  V.  Fisk,  12  Ciish.  150.  In  the  same 
State,  under  the  general  issue,  the  ten- 
ant cannot  specify  and  rely  ui)on  a  claim 
of  title  in  himself,  and  also  upon  the  de- 
fence of  non-tenure.  Creighton  v.  Proctor, 
12  Cush.  433. 

The  defendant  a(hnits  himself  to  be  in 
possession  of  all  the  land  <lemanded,  if  he 
files  no  disclaimer.  Blake  v.  Dennett,  49 
Maine,  102. 

A  disclaimer  operates  as  an  estoppel  by 
record  as  to  the  i)artof  the  land  disclaimed, 
unless  with(h-awn  or  amended  by  leave  of 
court.     Greeley  ?•.  Thomas,  56  Penn.  35. 

On  a  plea  of  ihsclaimer,  proof,  that  the 
defendant  remained  in  jxissession  after 
levy  of  the  plaintiirs  execution,  authorizes 
a  verdict  for  the  latter.  Merrill  v.  Gould, 
16  N.  H.  347. 


212 


DISSEISIN,   EJECTMENT,    REAL    ACTION. 


[book  II. 


session  of  all  the  land  not  specially  disclaimed.  A  disclaimer  as 
to  part  only  leaves  the  tenant  guilty  of  disseisin. ^  In  Pennsyl- 
vania, when  the  plaintiff  files  a  description  of  the  land,  the  defend- 
ant is  bound  to  file,  Avith  his  plea,  a  description  of  the  part  as  to 
which  he  defends;  otherwise,  the  plea  of  the  general  issue  applies 
to  the  whole  land  claimed;  and  the  defendant  cannot  allege,  as 
error,  that  the  judgment  included  more  than  was  in  dispute.^ 
And  where  the  tenant,  Avithout  entering  a  disclaimer  of  title  to 
any  part  of  the  land,  proves  that  he  is  in  possession,  claiming  title 
to  only  a  part  of  it,  a  verdict  may  be  rendered  for  all  the  land 
claimed.^  When  there  is  a  disclaimer  as  to  part,  and  the  general 
issue  as  to  the  residue,  and  the  jury  return  a  verdict  for  the  whole 
in  favor  of  the  demandant;  he  may  have  judgment  for  the  parcel 
intended  to  be  found,  if  the  materials  for  a  sufficient  description 
exist,  upon  entering  a  remittitur  as  to  the  residue.^ 

§  138.  A  plea,  that  the  locus  is  in  the  actual  adverse  possession 
of  A  under  a  claim  of  title,  and  that  the  defendant  has  a  license 


1  Graves  v.  Amoskeag,  44  N.  H.  462  ; 
Perkins  v.  Raitt,  43  Maine,  280. 

2  Hill  V.  Hill,  43  Penn.  521. 

A  defendant  joined  in  ejectment,  who 
disclaims,  must  repeat  his  disclaimer  so 
often  as  he  is  improperly  charged.  If 
joined  and  not  proved  in  possession,  he 
is  entitled  to  a  verdict  and  his  costs. 
Tripner  v.  Abrahams,  47  Penn.  220. 

A  tenant  at  will,  or  for  years,  may  plead 
special  non-tenure.  If  the  jilaintitf  reply 
that  the  defendant  is  tenant  of  the  free- 
hold, on  which  allegation  issue  is  formed, 
the  plaintiff  may  be  held  to  prove  his 
title,  if  the  defendant  shows  himself  to  be 
a  tenant  for  years,  or  at  the  will  of  a  third 
person,  and  can  be  regarded  as  a  tenant 
of  the  freehold,  only  by  reason  of  a  wrong 
done  by  him  to  the  plaintiff,  which  he 
cannot  qualify  by  showing  himself  to  be  a 
tenant  for  years  or  at  will.  Whidden  v. 
Proctor,  17'N.  H.  UO. 

One  who  occupies  land  with  a  perma- 
nent building,  thougii  by  mistake  of 
boundary,  cannot  set  up  a  specitication 
of  non-tenure  and  disclainier,  to  an  action 
brought  by  the  owner  for  recovery  of 
the  land.  Proprs.,  &c.  v.  Nashua,  &c.,  104 
Mass.  1. 

Under  a  plea  of  non-tenure,  if  the  defend- 
ant is  a  tenant  in  common,  the  writ  will 
be  maintained  for  his  share,  and  will  abate 
for  the  share  of  the  other  tenant.  Stevens 
V.  Morse,  47  N.  H.  532. 

A  disclaimer  by  one  defendant,  accom- 


3  Carrington  v.  Goddin,  13  Gratt.  587. 

4  Odlin  V.  Gove,  41  N.  H.  465. 


panied  by  a  general  denial  of  the  plaintifTs 
allegations,  and  an  averment  that  "  he 
was  and  still  is  lawfully  seised  and  in  pos- 
session," is  no  defence  to  a  demand  for 
judgment  for  possession,  and  damages  for 
detention.  Being  in  possession,  he  is  a 
necessary  party.  Pioche  v.  Paul,  22  Cal. 
105. 

When  a  defendant  disclaims  all  north 
of  a  certain  line,  and  pleads  the  general 
issue  as  to  all  south  of  it,  and  describes 
his  line  as  commencing  at  a  stake,  &c., 
thence  running  westerly  by  the  southerly 
side  of  the  boggy  ground  on  said  premises 
to  a  stake,  &c. ;  the  plea  is  not  bad  on  de- 
murrer, because,  for  aught  that  appears 
in  tlie  plea,  the  line  may  be  definitely 
located  and  fi.xed  by  such  description. 
But,  upon  proof  that  the  southerly  side  of 
such  boggy  ground  is  a  point  in  dispute, 
and  not  easily  ascertainable  with  cer- 
tainty ;  upon  motion,  the  plea  will  be  re- 
jected, and  the  defendant  compelled  to 
describe  his  line  by  some  fixed,  definite, 
and  visible  monument,  which  will  be  a 
necessary  point  in  the  defence.  The  plea 
should  so  describe  the  line  to  which  he 
claims,  that,  if  the  jury  find  for  him, 
their  verdict  may  follow  the  words  of 
the  plea.  Wendell  v.  Abbott,  45  N.  H. 
349. 


BOOK  II.]  PLEADING  —  EVIDENCE.  213 

from  Iiinijis  bad  on  demurrer  ;  if  only  intended  to  deny  tlie  plain- 
tiff's possession,  it  is  bad  as  only  amounting  to  the  general  issue 
already  pleaded;  if  intended  as  a  plea  of  license  under  the  true 
owner,  it  is  bad  as  denying  the  plaintiff's  possession,  and  as  not 
alleging  title  in  A.^ 

§  138  a.  A  disclaimer  of  title  and  possession  does  not  authorize 
a  judgment  by  confession,  for  which  possession  is  necessary.  The 
judgment  should  be  in  such  case  for  a  nonsuit.^ 

§  lo9.  An  answer,  purporting  to  go  to  the  whole  case,  setting 
up  title  to  half  the  land  sued  for,  is  bad.'^ 

§  140.  The  answer  must  not  state  evidence.'^ 

§  141.  Where  a  second  ejectment  is  brought,  pending  the  first, 
on  a  new  title ;   the  answer  must  negative  such  title.^ 

§  142.  Questions  of  pleading  arise  in  case  of  joint  parties.^ 
So  upon  tlie  joinder  of  different  estates.  Thus  suit  was  brought 
for  A,  B,  and  C.  Plea,  the  general  issue,  with  a  specification  of 
title  to  lot  A.  The  demandant  proved  a  conveyance  of  the  three 
to  him,  and  a  title  in  his  grantor  to  A  and  B,  but  none  to  C. 
Held,  he  might  recover  lot  C,  the  defendant  showing  no  title.'  (a) 

§  143.  With  reference  to  the  evidence  in  an  action  of  ejectment; 
it  sufficiently  appears,  from  what  has  been  already  stated,  that  the 
burden  of  proof  is  on  the  plaintiff  to  prove  a  paramount  title.^ 
Under  the  plea  of  not  guilty  this  burden  is  upon  the  plaintiff, 
though  he  is  not  obliged  to  pursue  any  particular  order  of  proof.^ 

§  144.  Proof  of  two  deeds  from  the  tenant  to  the  demandant, 
each  of  an  undivided  half  of  premises,  the  whole  of  which  is  de- 
manded, although  made  at  different  times,  does  not  shift  the 
burden  of  proof  upon  the  tenant  to  show  that  the  two  deeds  do 

1  Alexander  v.  Eastlaml,  37  Miss.  554.  ■?  Mara  v.  Pierce,  9  Gray,  306. 

'^  Noe  V.  Card,  14  Cal.  576.  »  llolbrook  v.  Niciiol,  36  111.  161 ;  Boy- 

3  Slaiijjliterr.  Detinev,  10  Ind.  103.  Ian  v.  Meeker,  4   Dutch.  '274.     See  Funk 

*  Moore  r.  Murdock,  ii6  Cal.  524.  v.  Kiiicaid,  5  Md.  404. 

5  Vance  v.  Olinjjer,  27  Cal.  358.  9  Langley's  v.  Jones,  26  Md.  462. 

6  See  Wyman  v.  Brown,  50  Maine,  139. 

(a)  By  statute,  tlie  rules  stated  in  tlie  ant  may  set  out  the  facts  by  special  plea 

text  are  extensively  chanjxed,  all  pleadinjjs  and  then  rely  on  the  statute,  instead  of 

excejit  the  general  issue  being  abolished,  showing   them  under    the  general  issue. 

See  Vail  v.  Halton,  14  Ind.  344  ;  15  III.  Tegarden  v.  Carpenter,  36  Miss.  404.     la 

236.  the  same    State,    when    seisin    is   denied, 

As   to  the  question  of  jurisdiction,  see  the  demandant  is  bound  to  jirove  it  within 

Roberts  i\  Pillow,  1  Hemj).  624.  the  jirescribed  time,  and  the  delen(lant  is 

With  reference  to  statutory  defences  ;  in  not  required  to  plead  the  Statute  of  Liini- 

Mississippi,  under  Stat.  1850,  the  defend-  tations.     Ellis  v.  Murray,  28  Miss.  129. 


214  DISSEISIN,    EJECTMENT,    REAL   ACTION.  [BOOK   II. 

not  refer  to  different  portions ;  but  the  burden  is  still  on  the 
demandant  to  prove  a  title  to  the  whole.  And  parol  evidence  is 
competent  for  the  tenant,  that  the  second  deed  was  by  agreement 
merely  a  substitute  for  the  first,  on  account  of  some  real  or  sup- 
posed defect  therein.^  So  where  the  plaintiff  seeks  to  recover, 
on  the  ground  that  the  defendant  has  not  performed  his  covenants 
to  pay  the  notes  given  for  the  purchase  of  the  land  ;  the  burden 
of  proof  is  on  the  plaintiff.^  But  where  the  tenant  requested 
the  court  to  rule  that  the  rights  of  the  parties  were  to  be  deter- 
mined upon  strict  principles  of  law  ;  but  was  denied,  and  the  in- 
struction was  given,  that  the  demandants  must  prevail  on  the 
strength  of  their  own  title,  and  that  the  burden  of  proof  was 
upon  them,  but  that  the  case  was  to  be  tried  on  the  law  and  the 
evidence,  like  any  other:  held,  sufficient.^  The  jury  have  a  right 
to  weigh  probabilities  and  solve  doubts  as  to  matters  of  fact ;  but, 
if  in  their  opinion  the  preponderance  of  proof  or  of  rational  in- 
ference as  to  any  fact  on  which  the  title  depends  is  not  on  the 
side  of  the  plaintiff,  they  ought  not  to  find  for  him.* 

§  144  a.  All  the  surrounding  circumstances,  indicating  whether 
a  party,  in  taking  possession  of  land,  entered  as  a  tenant  or  as 
owner  of  the  fee,  are  admissible  in  evidence.  Thus  the  real 
value  of  the  land  as  compared  with  the  price  paid,  or  a  conversa- 
tion between  such  person  and  a  claimant  of  the  laud,  tending  to 
show  negotiations  for  a  lease.  And  such  conversation  may  be 
proved  by  any  person  who  was  present  and  heard  it.-^ 

§  144  b.  A  tax-deed  is  evidence,  though  the  tax  purchaser  was 
in  possession  when  the  tax  accrued,  where  possession  by  him  is 
in  dispute.*^ 

§  144  c.  Though  the  grantee  and  subsequent  grantor  are  the 
same  person,  but  described  in  the  deeds  by  different  names,  the 
deeds  may  still  be  read  as  evidence  to  make  out  a  chain  of 
title.7 

§  144  d.  Where  land  is  claimed  by  a  son  under  an  alleged  parol 
purchase  from  his  father,  the  evidence  to  establish  it  must  be 
direct,  positive,  and  unambiguous.^ 

§  144  e.  In  ejectment  by  the  plaintiff,  as  administrator  of  his 
mother,  it  appeared  that  she  had  been  in  possession  of  the  land 

1  Fisk  V.  risk,  12  Cush.  159.  5  Oilman  v.  Riopelle,  18  Mich.  145. 

2  Roland  v.  Fischer,  30  111.  224.  6  j^. 

3  Blake  v.  Sawin,  10  Allen,  340.  1  Chiniqny  v.  Catholic,  41  111    148. 
*  Patterson  v.  Hansel,  4  Bush,  G54.  8  Harris  ;;.  Richey,  56  Penn.  395. 


BOOK   II.]  EVIDENCE.  215 

from  1818  until  her  death  ;  and,  in  order  to  rebut  tlie  presumption 
of  a  seisin  in  fee,  the  plaintiff,  after  evidence  of  the  loss  of  the 
original,  gave  secondary  evidence  of  an  assignment  to  his  mother 
for  the  remainder  of  a  term  of  ninety-nine  years,  subject  to  two 
lives;  but  there  was  no  evidence  of  the  creation  of  tlie  term. 
The  plaintiff  had  in  his  mother's  lifetime  mortgaged  to  a  per- 
son whose  interest  vested  in  the  defendant.  Held,  there  was 
evidence  for  the  jury  of  a  term,  and  they  might  presume  that  the 
possession  of  the  mother  was  referable  to  that  term,  and  not  to  a 
seisin  in  fee.^ 

§  144/.  The  acts  and  declarations  of  a  defendant,  wiiile  in  pos- 
session, may  be  given  in  evidence  in  his  favor,  even  if  they  amount 
to  an  assertion  of  boundaries.  So  declarations  to  the  plaintiff,  or 
to  one  under  whom  he  claimed,  by  a  tenant  of  the  defendant. 
So  declarations  of  tenants  in  possession,  that  they  held  mediately 
or  immediately  under  the  defendant;  although  they  are  alive 
and  might  be  called  as  witnesses.  But  not  declarations  of  a. ten- 
ant, that  the  property  leased  and  occupied  by  him  was  not  his 
landlord's  ;  as  against  the  landlord.^ 

§  144  g.  For  the  purpose  of  ascertaining  the  true  line  of  a  dis- 
puted and  uncertain  boundary,  the  acts  and  declarations  of  the 
former  owners  during  such  ownership,  especially  if  accompanied 
Avith  possession,  conducing  to  establish  the  common  line,  are  ad- 
missible evidence.^ 

§  144  h.  Where  there  is  a  dispute  between  adjoining  proprie- 
tors as  to  the  true  boundary  line,  and  the  defendant,  having  placed 
a  fence  on  what  the  plaintiff  claims  to  be  his  land,  has  introduced 
evidence  of  long  acquiescence  ;  evidence  of  acts  and  declarations 
of  the  plaintiff  and  his  grantors  is  admissible  to  rebut  any  such 
inference  of  acquiescence."* 

§  144  i.  But  acts  and  declarations  of  a  prior  owner  of  land,  after 
he  has  sold  it,  respecting  its  boundaries,  are  not  admissible.'^ 

§  144  j.  A,  the  owner  of  a  house  and  land,  permitted  B,  his 
son-in-law,  to  occupy  them,  and  while  B  was  in  possession  exe- 
cuted a  deed  to  him  of  the  premises,  which  was  not  recorded,  and 
the  delivery  of  which  was  in  dispute.  Held,  if  the  deed  was  not 
delivered,  yet  declarations  and  acts  of  A  and  B,  tending  to  show 

1  Metters  v.  Erown,  1  Hurl.  &  Colt.  fiSG.  *  Sneed  v.  Woodward,  30  Cal.  430. 

2  Slieaff'er  v.  Eaknian,  56  IVnn.  144.  5  Duuaway  r.  School  Directors,  40  III. 

3  Davis  V.  Jones,  3  Head,  G03 ;  Fona-     247. 
ren  v.  Durl'ee,  39  Miss.  324. 


216  DISSEISIN,    EJECTMENT,   REAL    ACTION.  [bOOK    II. 

that  they  both  believed  the  premises  had  been  effectually  con- 
veyed to  B,  and  that  they  both  treated  them  as  belonging  to  him, 
were  competent  evidence,  from  which  a  jury  might  infer  a  dis- 
seisin of  A  by  B  ;  although,  since  the  execution  of  the  deed,  A 
paid  taxes  and  obtained  insurance  in  his  own  name,  and,  with  the 
consent  of  B  and  his  wife,  conveyed  a  strip  of  the  land  to  the 
city  for  the  improvement  of  the  sidewalk. ^ 

§  144  h.  An  unsworn  ex  parte  statement,  appended  to  a  deposi- 
tion and  proved  by  a  witness,  having  no  relation  to  boundaries  or 
the  nature  of  the  possession,  but  referring  exclusively  to  what 
took  place  when  the  transfer  was  made,  is  inadmissible  to  show 
fraud  in  procuring  a  transfer  of  the  land.^ 

§  144  I.  Tax  receipts  are  admissible  evidence  of  the  under- 
standing of  the  parties  in  reference  to  lines  and  boundaries.-^ 

§  144  m.  Recitals,  in  a  lease,  of  judicial  proceedings,  whereby 
the  lessor  was  authorized  to  execute  the  lease,  are  not  admissible 
to  prove  title  for  the  lessee,  in  an  action  of  ejectment  by  him 
against  a  third  party ."^ 

§  144  n.  It  is  not  competent  for  the  plaintiff  to  prove,  that,  at 
and  before  a  sheriff's  sale,  the  price  and  value  of  real  estate  in 
the  county  has  become  greatly  depreciated.^ 

§  144  0.  An  occupant  cannot  give  evidence  for  the  defendant.^ 

§  144^.  But  his  declarations,  as  to  the  manner  in  which  he 
came  into  possession,  are  competent  against  the  defendant.'' 

§  144  q.  The  admissions  of  a  person  who  has  ceased  to  hold  the 
title,  offered  for  the  purpose  of  impeaching  the  title  acquired  by 
another,  who  was  not  present  when  the  admissions  were  made,  and 
who  was  not  shown  to  have  been  in  any  way  connected  therewith  ; 
are  incompetent.^ 

§  144  r.  In  a  real  action  to  which  the  husband  was  only  a  nom- 
inal party,  evidence  of  his  declaration  that  he  owned  the  land,  if 
made  subsequent  to  a  conveyance  of  it  by  him,  through  a  third 
party,  to  the  wife,  is  inadmissible  against  her,  to  prove  that  the 
conveyance  was  in  fraud  of  his  existing  or  subsequent  creditors. 
But  evidence,  that  after  making  such  conveyance  he  paid  the 
debts  which  he  owed  when  making  it,  is  competent.^ 

1  Motte  V.  Aljier,  15  Gray,  322.  6  poust  v.  Trice,  8  Jones,  490. 

2  Bo\v.ser  V.  Cravener,  56  Penn.  132.  7  lb. 

3  St.  Louis  V.  Risley,  40  Mis.  356.  «  O'Neil  v.  Vanderburfr,  26  Iowa,  104. 
<  Piatt  V.  Picton,  3  Rob.  (N.  Y.)  64.  9  Winchester  v.  Charter,  97  Mass.  140. 
s  Hill  V.  Meyers,  43  Penn.  170. 


BOOK   II.]  EVIDENCE  —  DAMAGES.  217 

§  144  s.  The  defendant  must  bring  forward  matters  strictly- 
defensive,  or  thereafter  be  precluded ;  but  not  new  matter  con- 
stituting a  cause  of  action. ^ 

§  144  t.  Evidence  as  to  a  line  established  in  an  action  between 
parties  owning  adjoining  estates  on  a  bay,  and  defined  by  monu- 
ments in  accordance  with  the  judgment,  is  admissible,  in  an  action 
between  one  of  the  parties,  and  a  third  party  owning  an  estate 
on  the  same  shore,  only  so  far  as  it  tends  to  locate  and  identify 
the  monuments  by  which  the  lines  were  drawn.  The  course 
upon  the  flats,  of  the  lines  established  in  dividing  a  single  estate, 
under  the  owners  of  which  neither  party  in  a  writ  of  enti-y  to 
recover  certain  flats  in  the  same  cove  claims  title,  and  which  are 
separated  from  the  land  in  question  by  intervening  estates,  the 
lines  of  which  are  not  allowed  to  be  given  in  evidence,  has  no 
tendency  to  show  the  course  in  which,  by  the  rules  of  law  or  by 
agreement  of  proprietors,  the  lines  of  the  demanded  premises 
should  be  run.^ 

§  145.  Occupation  by  the  defendant  may  be  proved  by  the  in- 
formation and  knowledge  of  a  witness.^  But  evidence  of  general 
reputation,  and  the  individual  opinions  of  witnesses,  are  inadmis- 
sil)le  to  show  that  tlie  plaintiff's  ancestor,  who  lived  on  the  land, 
was  considered  as  tlie  owner.**  Evidence  may  be  offered  of  cir- 
cumstances in  connection  with  long  and  peaceable  possession,  to 
raise  the  presumption  of  a  grant.^ 

§  145  a.  Proofs  will  not  be  admitted  under  an  answer  setting 
up  title  to  only  a  portion  of  the  premises,  unless  it  particularly 
describes  such  portion.^ 

§  146.  Upon  a  question  of  disputed  boundary,  respecting 
which  a  survey  and  plats  have  been  made,  it  is  not  competent  to 
ask  a  witness  the  position  of  an  object,  which  it  does  not  appear 
from  the  plats  and  explanations  he  had  pointed  out  to  the  sur- 
veyor.'^ 

§  147.  Where  ejectment  is  brought  to  enforce  specific  perform- 
ance, parol  evidence  is  admissible,  and  the  question  is  for  the 
jury.8 

§  148.  A  bond  given  to  indemnify  against  defects  in  the  title 

1  Ayres  v.  Bensley,  32  Cal.  r.20.  &  Townsend  t-.  Downer.  32  Vt.  183. 

2  Boston  r.  Ricliardson,  13  Allen,  146.  ''  Anderson  ;'.  Fisk,  36  Cal.  62o. 

•^  Van  Kensselaer  v.  Vickery,   3  Lans.  "  Carroll  v.  (iranite,  &c.,  11  Md.  399. 

57.  8  Moore  v.  iSmall,  19  Tenn.  461. 

4  Taliaferro  v.  Peyer,  12  Gratt.  277. 


218 


DISSEISIN,    EJECTMENT,    REAL    ACTION. 


[book  II. 


on  the  sale  of  land,  is  not  admissible  in  evidence  against  the 
grantee,  on  an  ejectment  brought  by  a  third  party.^ 

§  149.  A  plaintiff  in  ejectment  may  withdraw  from  the  consid- 
eration of  the  jury  a  record  of  sale  by  a  guardian,  and  a  deed 
which  was  so  defective  as  not  to  vest  title.^ 

§  150.  On  the  trial  of  a  second  ejectment,  between  the  same 
real  parties,  the  record  of  the  former  action  is  admissible  in  evi- 
dence, though  the  fictitious  parties  be  different,  and  also  the  term 
sued  for.'^ 


§  151.  Ejectment  or  a  real  action  is  brought,  primarily,  to 
recover  the  land  alone.  By  a  very  general  statutory  practice, 
however,  damages  may  now  be  recovered,  in  connection  with  the 
property  itself,  which  is  the  principal  object  of  the  suit.*  (a) 


74. 


1  Washahaugli  v.  Entriken,  34  Penn. 

-  Chapin  v.  Ciirteninus,  15  111.  427. 
^  Dean  v.  Dazey,  5  Harring.  440. 


(a)  In  an  action  of  right,  in  Iowa,  a 
plaintift',  who  has  both  title  and  right  of 
possession,  can  also  recover  for  use  and 
occupation.  Dunn  v.  Starkweather,  6 
Clarke,  466. 

So,  under  the  Practice  Act  of  Cali- 
fornia, it  is  comiietent  for  the  plaintiff  to 
recover  real  property,  with  damages  for 
withholding  it,  and  the  rents  and  profits, 
all  in  the  same  action,  and  as  one  cause 
of  action.  Sullivan  v.  Davis,  4  Cal.  291. 
Where  judgment  was  rendered  for  the 
land,  and  for  large  several  damages 
against  the  defendants  ;  the  plaintiff  was 
allowed  to  release  the  damages,  which 
should  have  been  joint,  if  given  at  all, 
and  to  retain  the  judgment  for  the  land. 
Curtis  V.  Herrick,  14  Cal.  117.  But  the 
plaintiff  in  ejectment  recovers  mesne 
profits  only  from  the  accrual  of  his  right 
of  possession.  Thus  an  execution  pur- 
chaser, only  from  the  date  of  the  sherifTs 
deed,  not  of  the  sale.  Clark  r.  Bovreau, 
14  Cal.  634.  And  if  the  plaintiff  is  in 
possession  of  part  of  the  land,  he  cannot 
recover  damages  for  all.  Ellis  v.  Jeans, 
26  Cal.  275. 

So,  in  Kentucky,  the  plaintiff  may 
unite  in  his  petition  claims  for  the  recov- 
ery of  specific  real  property,  and  the 
rents,  profits,  and  damages  for  withhold- 
ing it.  Walker  v.  Mitchell,  18  B.  Mon. 
541. 

So,  in  New  York,  the  inquisition,  after 
an  action  of  ejectment,  to  recover  dam- 
ages for  use  and  occupation,  is  a  substi- 


*  Garner  v.  Jones,  34  Miss.  505.  See 
jNIoss  v.  Shear,  25  Cal.  44 ;  Brooks  v. 
Wortman,  22  Lou.  An.  491 ;  Stearns,  R. 
Act,  346. 

tute  for  the  action  of  trespass  for  mesne 
profits.  The  fact,  that  the  defendant 
occupies  under  a  joint  lease  with  another 
party,  is  no  ground  for  reduction  of  dam- 
ages. But  damages  cannot  be  assessed 
for  any  time  during  which  the  defendant 
was  not  in  possession,  either  in  fact  or  in 
judgment  of  law.  livers  v.  Wheeler, 
Hill  &  Denio,  389.  See  2  Rev.  Sts.  311, 
§  53.  Under  the  Code,  mesne  profits 
are  recovered  by  action,  not  by  sugges- 
tion, after  recovery  in  ejectment. 
Holmes  v.  Davis,  19  N.  Y.  (5  Smith) 
488. 

In  Massachusetts,  by  the  Rev.  Sts.  c. 
101,  §§  15,  24  (see  Gen.  Sts.),  an  applica- 
tion for  the  assessment  of  rents  and  prof- 
its upon  a  writ  of  entry  cannot  be  made 
after  verdict  for  the  demandant  on  the 
title,  unless  an  order  is  passed  by  the 
court,  before  such  verdict  is  recorded, 
postponing  the  assessment.  Judd  v. 
Gibbs,  8  Gray,  435.  In  the  same  State, 
the  recovery  of  rents,  &c.,  is  limited  to 
six  years.  Curtis  v.  Francis,  9  Cush. 
427.  When  issue  is  taken  on  disclaimer, 
the  demandant,  if  he  recover,  is  entitled 
to  the  mesne  profits.  Richards  v.  Ran- 
dall, 4  Gray,  53. 

In  Elaine  (and  probably  elsewhere), 
to  entitle  the  demandant  to  recover  for 
mesne  profits,  in  a  writ  of  enfry,  under 
Rev.  Sts.  145,  he  must  set  forth  his  claim 
for  tliem  in  his  writ.  Though  specially 
declared  for,  they  are  recoverable  only  to 
the  date  of  the  writ.      Such  as  accrue 


BOOK   II.] 


DAMAGES. 


219 


§  152.  Independently  of  statute,  the  remedy  for  mesne  2^roJits 


before  cannot  be  recovered  in  any  future 
action.  Such  as  accrue  after,  and  jirior 
to  the  time  of  jiosse.^sion  taken,  may  be 
recovered  in  an  action  of  trespass.  J^ar- 
rabee  r.  Lumbert,  iUJ  Maine,  440. 

In  Minnesota,  tiie  i)laintiff  recovers 
damac:es.  Armstrong  v.  Hines,  8  Min. 
254.  ^ 

So,  in  Missouri,  tlie  annual  value, 
though  the  parties  hold  in  common. 
Cutter  r.  Waddingham,  33  Mis.  'Jli'J. 

In  Jlit^sissippi,  and  probably  else- 
where, a  judgment  for  the  plaintitf,  in  an 
action  for  possession,  is  conclusive  evi- 
dence, in  an  action  for  mesne  i)rof]ts,  to 
sliow  that  the  title  was  in  the  plaintitf 
from  the  time  he  brought  his  ejt'ctment. 
And  as  his  right  to  mesne  profits  depends 
upon  his  title,  not  upon  his  pos.<ession,  at 
the  time  of  suit,  he  can  recover  upon 
such  proof,  though  he  has  never  actually 
been  put  in  possession  under  his  judg- 
ment in  ei'ectment.  Brewer  r.  Beckwith, 
35  Miss.  467. 

But,  in  I'ennsjlvania,  one  who  has  re- 
covered in  ejectment,  but  not  entered  into 
possession,  cannot  sustain  trespass  for 
the  mesne  profits.  Caldwell  v.  Walters, 
22  Benn.  378. 

So,  in  North  Carolina,  although  the  de- 
fendant has  left  the  premises.  Carson  v. 
Smith,  1  Jones,  10(3.  After  recovery  in 
ejectment,  an  action  for  mesne  jirofits 
may  be  brought  in  the  name  either  of  the 
nominal  plaintiff,  or  of  his  lessor,  but  not 
of  both.     Den  r.  Lvmsford,  Busb.  401. 

As  to  the  time  for  wliich  mesne  profits 
may  be  recovered,  see  Lynch  r.  Cox,  23 
Penn.  2G5  ;  Hill  r.  Jleyers,  4()  Benn.  15. 

In  an  action  to  recover  land  and  dam- 
ages, the  (Cal.)  Statute  of  Limitations  is 
a  bar  to  all  damages  which  accrued  three 
years  befoie  commencement  of  the  ac- 
tion.    Love  ('.  Shartzer,  31  Cal.  487. 

In  ejectment,  the  plaintiff  is  only  enti- 
tled to  recover  damages  for  inistf,  when 
he  prevails.  Beal  v.  Harmon,  38  Mis. 
435. 

In  Virginia,  an  office  judgment,  in 
ejectment,  does  not  become  final,  without 
the  intervention  of  the  court  or  a  jury  ; 
but  an  order  for  an  inquiry  of  damages  is 
proper.     James  R.  r.  Lee,  Iti  Gratt.  424. 

The  provision  of  the  statutes  of  Ala- 
bama, that  "  persons  holiling  possession 
under  color  of  title,  in  good  faith,  are  not 
responsible  for  damages  or  rent  for  more 
than  one  year,  before  the  commencement 
of  the  suit,"  is  applicable  in  a  chancery 
suit  for  partition  ;  and  a  defendant  in 
such  suit  will  be  allowed  for  imjirove- 
ments,  not  exceeding  the  rent.  Ormond 
r.  Martin,  1  Ala.  (S.  C.)  52tj. 

Where  the  annual  value  is  found  both 


in  golil  and  currency,  a  general  judgment 
may  be  rendered  for  an  amount  equal  to 
the  currencv.  Carpentier  v.  Small,  35 
Cal.  346. 

In  Iowa,  where  the  petition  in  eject- 
ment is  in  the  ordinary  form,  but  con- 
cludes by  asking  "judgment  against  the 
defendant,  establishing  and  confirming  in 
and  to  the  plaintiff  an  estate  in  feesim- 
])le  in  the  whole  of  the  land,  the  imme- 
diate possession  thereof,  and  lor  said  sum 
of  five  hundred  dollars  above  demanded 
and  c(  sts  ;  "  the  cause  should  not  be  trans- 
ferred to  the  chancery  docket.  The  right 
to  such  transfer  arises,  only  when  the 
plaintiff  has  brought  his  action  by  wrong 
proceedings.  Byers  v.  Kodabaugh,  17 
Iowa,  53. 

Damages,  "  for  the  unlawful  withhold- 
ing of  the  premises,"  include  onl}^  the 
rents  and  profits,  not  damages  for  injuries. 
The  defendant  can  recover  for  his  im- 
pi-()vements  only  the  amount  which  they 
have  added  to  the  value  of  the  land  ;  and 
testimony  should  be  admitted  showing 
their  value,  the  value  of  the  land  without 
them,  its  value  with  them,  and  all  facts 
tending  to  prove  its  value  if  they  had 
never  been  made.  On  the  trial  of  the 
issue  made  by  the  claim,  the  jilainliff  is 
entitled  to  recover  for  th.e  use  of  the 
premises,  exclusive  of  the  improvements, 
from  the  time  the  judgment  in  ejectment 
was  rendered.  Facquette  v.  Pickness,  19 
Wis.  219. 

A  town  is  entitled  to  recover  mesne 
profits  for  the  possession  of  a  street,  after 
recoverv  in  ejectment.  Apalachicola  v. 
Apalachicola,'&c.,  9  Florida,  340. 

In  an  action  for  mesne  profits,  brought 
within  three  years  after  the  termination 
of  the  action  of  ejectment,  if  the  Statute 
of  limitation  is  plcailed,  the  plaintifl'  is 
entitled  to  recover  the  rents  and  profits 
from  the  date  of  the  demise  laid  in  the 
declaration  until  the  possession  is  sur- 
rendered. The  recovery  is  not  confined 
to  the  period  of  limitation  from  the  insti- 
tution of  the  suit.  Avent  v.  Hord,  3 
Head,  459. 

If,  pending  an  action  to  foreclose,  the 
mortgagor  leases  a  portion  of  the  prem- 
ises to  a  tenant,  who  retains  actual  i)os- 
session  under  a  claim  of  right,  by  virtue 
of  certain  provisions  of  the  mortgage, 
after  formal  possession  has  been  delivered 
to  tlie  mortgagee  ujxin  execution  ;  and  it 
is  afterwards  adjudged,  in  a  writ  of  entry 
^brought  to  try  the  title,  that  the  mort- 
gagee is  entitled  to  possession  as  against 
such  tenant :  he  may  recover  damages 
for  rents  and  profits  from  the  time  when 
possession  was  delivered  to  him.  Ilavea 
V.  Adams,  8  Allen,  363. 


220 


DISSEISIN,   EJECTMENT,    REAL    ACTION. 


[book   II. 


is  an  action  of  trespass,  subsequent  to  the  recovery  in  eject- 
ment. 

§  153.  If  one  puts  a  party  in  possession,  having  no  right  to  do 
so,  and  afterwards  leases  to  others;  he  is  liable,  with  his  lessees, 
for  mesne  profits.^ 

§  154.  Mesne  profits  must  be  limited  by  the  annual  rent,  or 
some  other  definite  standard.  It  is  error  to  charge,  that  the  jury 
may  give  such  extra  damages  as  they  may  think  the  particular 
circumstances  of  the  case  demand.- 

§  155.  The  statute  law  very  generally  provides  for  an  allow- 
ance to  the  defendant,  in  the  nature  of  set-off,  on  account  of  any 
permanent  improvements,  or  those  having  the  character  of  fixtures, 
which  he  may  have  made  upon  the  land  recovered.^  The  quali- 
fication is  usually  expressed  or  implied,  that  the  improvements 
were  made  in  good  faith,  under  color  of  title.*  Or  by  a  bond  fide 
possessor,  who  supposes  himself  to  be  the  true  owner  of  the  land, 
and  is  ignorant  that  his  title  is  contested  by  any  person  claiming 
a  better  right.^  {a) 

1  Storch  V.  Carr,  28  Penn.  135.  *  Welch  v.  Sullivan,  8  Cal.  511. 

2  Hanna  i\  Pliillips,  1  Grant,  253.  5  Houston  v.  Sneed,  15  Tex.  307.     See 

3  M'Minn  v.  Mayes,  4  Cal.  209;  14  Eector  v.  Gaines,  lU  Ark.  70;  Butler  v. 
Cal.  465.  See  Hall  v.  Browne,  Cal.  7  Same,  ib.  95 ;  Dotliage  v.  Stuart,  35  Mis. 
Bush.  43.  251. 


(a)  Where,  in  an  action  of  ejectment, 
the  jury  assessed  the  amount  of  the  rents 
and  profits  due  to  the  plaintiff's  lessor, 
and  also  the  value  of  the  improvements 
made  by  the  defendant,  which  sum  ex- 
ceeded the  former;  held,  the  judgment 
should  have  been  for  the  defendant  for 
such  excess,  and  the  hab.  fac.  poss.  stayed 
until  it  was  paid.  Abbey  v.  Merrick,  27 
Miss.  320. 

In  Pennsjdvania,  ejectment,  in  the 
nature  of  a  bill  in  equity,  does  not  lie  to 
compel  payment  for  improvements  made 
during  possession  under  a  condemned 
title.  The  claim  for  improvements  should 
have  been  interposed  in  the  action  of 
ejectment,  and  enforced  by  a  conditional 
verdict.  Paull  v  Eldred,  29  Penn.  415. 
In  ejectment,  the  tenant  cannot  be  al- 
lowed to  prove  that  he  has  made  valuable 
improvements  since  the  termination  of  a 
former  unsuccessful  action  between  the 
same  parties  for  the  same  premises. 
Wilkinson  v.  Pearson,  23  Penn.  117. 

In  Indiana,  the  value  of  improvements 
cannot  be  settled  till  after  the  question 
of  title.     Wernke  v.  Haren,  32  Ind.  431. 

In  Mississippi,  the  defendant  cannot 
claim  for  improvements,  unless  the  plain- 


tiff in  his  declaration  claims  mesne  profits. 
Learned  v.  Corley,  43  Miss.  687. 

In  California,  where  no  proof  is  intro- 
duced to  show  damages,  it  is  held  no 
error  to  allow  the  defendant  to  prove  tlie 
value  of  improvements.  Ford  v.  Holton, 
5  Cal.  319.  But,  in  a  later  case,  it  is  de- 
cided that  the  value  of  improvements  can 
only  be  allowed  by  way  of  setoff  against 
damages  for  use  and  occupation,  and 
therefore  cannot  exceed  them.  Yount  v. 
Howell.  14  Cal.  465. 

In  Vermont  (under  a  plea  of  not 
guilty),  no  allowance  can  he  made  for 
betterments,  the  remedy  being  by  a  pro- 
ceeding imder  the  statute.  Ford  v.  Flint, 
40  Vt.  382. 

Where  the  defendants  claim  for  im- 
provements, they  ma}',  during  the  trial, 
and  after  the  evidence  in  supjiort  thereof 
has  been  given,  withdraw  such  claim, 
and  proceed  with  their  other  defences. 
Booth  V.  Small,  25  Iowa,  177. 

The  tenant  cannot,  by  virtue  of 
(Mass.)  Rev.  Sts.  c.  101,  §  19,  claim  com- 
pensation for  any  improvements  beyond 
the  limits  of  tlie  premises  demanded  (as, 
in  this  case,  the  construction  of  a  side- 
walk) ;    for  taxes  paid ;    for  interest  on 


BOOK   II.] 


VERDICT. 


221 


§  156.  Witli  reference  to  the  verdict  in  an  action  of  ejectment, 
it  must  be  certain,  and,  if  it  be  for  part  only  of  the  land  described 


sums  expendefl  in  iinproveincnts  ;  or  for 
a  fence  built  many  years  before,  but  not 
sliown  in  the  assessor's  report  to  be  of 
any  value.  Curtis  v.  Gay,  15  Gray, 
36. 

Under  §  4603,  (Mich.)  Comp.  Laws, 
providing^  a  compensation  for  improve- 
ments made  by  a  defendant  in  ejectment, 
claiming  under  a  deed  of  tlie  auditor<i;en- 
eral ;  the  lands  claimed  must  be  the  same, 
or  some  of  the  same,  described  in  and 
claimed  by  the  declaration.  Nor  does 
the  section  apply,  if  a  person,  or  those 
under  whom  he  claims  by  tax-deed,  by 
mistake  go  on  to  the  land  of  another  in 
good  faitli,  and  there  remain  for  six  ye.ars 
and  make  improvements.  King  v.  Pot- 
ter, 18  Mich.  134. 

A  party  dispossessed  may  recover 
compensation  for  all  improvements  made 
by  him  in  good  faith,  prior  to  notice  of 
the  adverse  title.  Fenwick  v.  Gill,  38 
Mis.  510.  Under  the  provisions  of  the 
(Mis.)  Ejectment  Law,  the  defendant  can 
recover  the  value  of  improvements  made 
by  him  in  good  faith,  prior  to  notice  of 
the  adverse  title.  So,  though  without 
title.     Dothage  v.  Stuart,  35  Mis.  251. 

A  tenant  of  land,  entering  with  no 
claim  of  title,  is  not  entitled  to  l)etter- 
ments.     Rand  v.  Dodge,  17  N.  H.  343. 

Under  section  1,  c.  34,  (Maine)  St.  1853, 
which  provides  for  compensation  to  ten- 
ants for  improvements,  when  they  have 
been  in  "actual  occupation"  more  than 
twenty  years,  &c. ;  such  occupation  must 
be  adverse.  Peabody  v.  Hewett,  52 
Maine,  33. 

A  defendant  in  a  chancery  suit  for 
partition  of  lands,  of  which  he  has  been 
in  possession  under  color  of  title,  in  good 
faith,  should  not  be  charged  rent  for  more 
than  one  year  before  the  bringing  of  tlie 
suit ;  and  he  may  offset  against  this  the 
value  of  his  improvements,  not  exceeihng 
the  rents  charged  against  him.  Ormond 
V.  Martin,  37  Ala.  598.  Wliero  a  verdict 
was  rendered  by  consent  for  the  land, 
and  the  value  of  each  lot  assessed ;  the 
plaintitl's  declined  to  pay  for  the  improve- 
ments as  assessed,  and  a  judgment  was 
rendered,  requiring  tliem  resi)e(;tively  to 
pay  to  the  plaintiffs  the  value  of  the  lots 
claimed  by  them,  and  declaring  that  "  on 
the  payment  of  said  sums  re.<j)cctively 
the  defendants  shall  retain  the  possession 
of  the  premises,  free  and  discharged  from 
recovery  by  said  plaintitls,  and  from  all 
claims  and  actions  whatsoever  for  the 
recovery  of  title  or  possession  of  said 
premises,  and  from  all  such  claims  by 


them  and  all  claims  under  them,  then 
said  payment  shall  he  a  bar."  Held,  on 
such  i)ayment,  as  between  jjarties,  or 
privies  to  the  record,  the  i)lainiiifs'  title 
was  divested,  and  such  an  interest  trans- 
ferred to  the  defendants  as  woulil  main- 
tain ejectment.  Also,  that  a  tenant  of 
the  plaintiffs,  in  jiossession,  afterwards 
served  with  i)rocess,  and  wh.o,  ])eniling 
the  suit,  attorned  to  the  delendants,  was 
estopped  from  denying  it.  Kno.K  v. 
Easton,  38  Ala.  345. 

The  defendant  must  plead  his  im- 
provements by  way  of  set-off.  Moss  v. 
Shear,  25  Cal.  38  ;  Carpenlier  w.  Gardiner, 
2U  Cal.  160. 

Where  a  defendant  in  ejectment  failed 
without  excuse  to  set  up  a  claim  for  im- 
provements, he  caimot  afterwards  come 
into  equity  to  assert  it.  ^Nlooily  v.  Har- 
per, 38  Miss.  599. 

The  extent  of  improvements  made 
upon  land,  the  title  to  which  is  in  dispute, 
is  evidence  bearing  upon  an  estopi)el 
sought  to  be  raised  by  the  defendants. 
Gratz  V.  Beates,  45  Tenn.  495. 

Where  the  tenant  claims  betterments, 
and  the  demandant  abandons  to  him  ;  the 
tenant  should  pay  the  value  of  the  prem- 
ises, without  the  improvements,  at  the 
time  of  trial,  and  not  at  the  time  of  entry. 
Cary  v.  Whitney,  50  Maine,  322. 

When  a  defendant  in  ejectment, 
against  whom  judgment  is  recovered,  has 
made  improvements  which  are  destroyed 
by  casualty,  so  that  no  permanent  value 
is  imparted  thereb}'  to  the  land,  and  he  is 
therefore  entitled  to  no  comj)ensation  for 
them;  he  is  not  liable  for  the  enhanced 
rent  of  the  premises  during  the  existence 
of  the  improvements.  Nixon  v.  Porter, 
38  Miss.  401. 

When  the  answer  of  a  plaintiff  in 
ejectment,  to  the  com])laint  of  the  oppo- 
site party  for  improvements,  does  not  con- 
tain the  proper  allegations  as  to  the  value 
of  the  use  of  tlie  premises  by  such  party 
subsequent  to  the  judgment  in  ejectment ; 
he  should  be  allowed  to  amend,  on  terms, 
at  the  trial.  Pacquette  v.  Pickness,  19 
Wis.  219. 

In  a  writ  of  entry,  the  tenant  has  no 
right  to  require  the  judge  to  instruct  a 
jury,  that,  in  estimating  what  would  have 
been  the  value  of  the  premises  if  no 
buildings  had  been  erected,  or  improve- 
ments made,  or  waste  committeil,  they 
should  find  what  the  value  woidd  have 
been,  without  that  knowledge  of  the  <]iial- 
ity  and  value  of  granite  found  thereon, 
which  the  tenant's  improvements  alone 


222 


DISSEISIN,    EJECTMENT,    REAL    ACTION. 


[book   II. 


in  the  declaration,  the  part  should  be   described   by  metes  and 


have  disclosed,  by  opening  tlie  quarries 
and  working  the  granite  ;  for  the  intrinsic 
value  of  the  ])reniises  might  have  been 
as  fully  nianitcsteil  otiierwise.  Peabody 
V.  Ilewett,  5'2  Maine,  33. 

Improvements  on  public  lands  cannot 
form  the  object  of  a  contract  with  a  tres- 
passer, who  is  not  in  a  situation  to  avail 
himself  of  the  pre-emption  law.  Spurlin 
V.  Millikin,  16  La.  An.  217. 

An  occupant,  to  be  entitled  to  pay  for 
improvements  under  tlie  (Ky.)  occupying 
claimant  law,  should  deduce  a  title  from 
the  commonwealth.  It  is  not  sufficient 
to  show  that  he  believed  he  was  the 
owner,  unless  his  belief  was  based  on  a 
grant  from  the  commonwealth,  even 
though  invalid.  It  is  not  sufficient  that 
he  holds  under  those  claiming  by  a  deed 
from  the  sheriff,  made  in  pursuance  of  an 
unauthorized  sale  for  taxes  alleged  to  be 
due  from  a  patentee.  Fairbairn  v.  Means, 
4  Met.  (Ivy.)  323. 

If  a  mortgagor  leases  for  years,  and 
receives  an  advance  from  the  lessee  to 
expend  in  buildings  and  improvements, 
which  is  done  ;  the  lessee,  after  judgment 
against  him  in  a  writ  of  entry  brought  by 
the  mortgagee,  cannot  be  allowed  com- 
pensation for  them,  altliough  he  had  rea- 
son to  believe  that,  under  the  terms  of 
the  mortgage,  the  mortgagor  had  a  right 
to  execute  such  lease.  Haven  v.  Boston, 
8  Allen,  369.  A  tenant,  having  taken 
liis  title  pendfiiite  lite,  cannot  be  al- 
lowed for  buildings  or  imjirovenients, 
although  he  had  reason  to  believe  his 
title  good ;  but,  on  the  recovery  of  the 
premises  by  the  landlord,  damages  should 
be  assessed  for  the  rents  and  profits  of 
such  buildings  and  improvements,  as  well 
as  of  the  land.  The  (Mass.)  Gen.  Sts.  c. 
134,  §§  18,  ly,  allowing  compensation  to 
tenants  in  real  actions  for  buildings  or 
improvements,  under  certain  circum- 
stances, are  not  applicable  to  a  mort- 
gagor, or  any  person  claiming  under  him. 
Haven  v.  Adams,  8  Allen,  363. 

Under  the  statutes  of  Arkansas,  a  pur- 
chaser from  the  State  of  lands  forfeited 
for  non-i)aymeut  of  taxes  must  pay  to  the 
owner  of  improvements  thereon  double 
their  value,  or  the  land  reverts  to  the 
State.     Lacefield  v.  Stell,  21  Ark.  437. 

The  claim  of  an  occupying  claimant 
for  improvements  is  the  subject  of  act 
and  transfer.  An  occupying  claimant  of 
land  is  entitled,  under  (Iowa)  l!ev.  Sts. 
§  2264,  to  compensation  for  improvements 
made  by  or  assigned  to  him,  before  judg- 
ment against  him  in  an  action  of  right, 
although  he  knew  of  a  decree  by  which 


the  legal  title  to  the  land  existed  in 
others,  if  he  believed  such  decree  to  be 
fraudulent  and  void,  and  always  resisted 
it ;  but  he  is  not  entitled  to  compensation 
for  improvements  made  after  such  judg- 
ment. Craton  v.  Wright,  16  Iowa,  133; 
Parsons  v.  Moses,  ib.  440.  A  person  in 
possession  by  a  tenant  maj'  be  an  occu- 
pying claimant,  within  the  statute  giving 
such  claimants  coiupensation  for  improve- 
ments. In  an  action  for  improvements, 
the  rents  and  profits  during  the  period  in 
which  they  were  made  may  be  applied  in 
payment  of  them,  even  though  such 
period  extends  back  more  than  six  years. 
Where  an  occupying  claimant,  against 
whom  judgment  has  been  rendered  in  an 
action  of  right,  brings  an  action  for  im- 
provements, the  defendant  may  be  al- 
lowed for  the  claimant's  occupation  of  the 
premises  after  the  judgment  in  the  action 
of  right.  Parsons  v.  Moses,  16  Imva,  440. 
The  (Iowa)  Kev.  §  2274,  clearly  giving 
the  power  to  render  a  money  judgment 
against  the  owner  of  lands  in  favor  of 
the  occupant  for  improvements  is  un- 
constitutional. A  grantee  is  an  assignee 
within  the  occupying  claimant  law.  Rev. 
§  2268.  Where  the  owner  of  land  is 
obliged  to  pay  interest  on  improvements, 
he  is  entitled  to  rent  for  occupation  com- 
puted upon  the  land  and  the  improve- 
ments ;  otherwise,  only  upon  the  land. 
The  occupant  is  to  be  allowed,  not  the 
cost  of  improvements,  but  the  amount 
only  that  he  has  actually  augmented  the 
value  of  the  property.  Childs  v.  Shower, 
18  Iowa,  261. 

In  an  action  to  recover  possession 
against  a  naked  trespasser  who  has  made 
improvements,  but  afterwards  became  a 
colenant ;  the  plaintiff  can  recover  the 
increased  value  of  the  rents  and  profits 
arising  from  such  improvements.  Car- 
pentier  v.  Mitchell,  29  Cal.  330. 

A  town,  which  illegally  takes  land  for 
a  school-house,  cannot  be  allowed  any 
thing  for  betterments,  under  (Mass.) 
Kev.  Sts.  c.  101,  §§  19,  20.  Harris  v. 
jNIarblehead,  10  Gray,  40.  In  an  action 
for  land  conveyeil  in  fraud  of  creditors, 
the  tenant,  with  notice  of  the  fraud,  is  not 
entitled  to  be  allowed  for  improvements 
under  (Mass.)  Kev.  Sts.  c.  101,  unless  he 
files  a  claim  therefor  before  verdict. 
Livermore  r.  Boutelle,  11  Grav,  217. 

A  purchaser  in  bad  faith  has  no  other 
claim  for  his  improvements  than  those 
stated  in  the  three  first  sentences  of  the 
(La.)  C.  C.  Art.  500.  Cannon  v.  White, 
10  La.  An.  85. 

A  parol  vendee  in  possession  is  not 


BOOK   II.] 


VERDICT  —  JUDGMENT  —  EXECUTION. 


223 


bounds,  (a)  or  by  reference  to  natural  or  artificial  objects,  or  to 
the  lines  of  other  tracts.^  (6) 

§  157.  A  verdict  sufficiently  certain,  either  in  itself,  or  by  ref- 
erence to  somethin":  of  a  permanent  and  public  nature,  to  enable 
the  court  to  give  judgment,  and  the  sheriff  to  deliver  possession, 
•will  be  sustained.  But  a  verdict,  uncertain  in  itself,  is  not  helped 
by  reference  to  a  line  proved  by  witnesses  on  the  trial;  or  a  line, 
the  starting-point  of  which  is  not  fixed  with  reasonable  certainty. 
"  The  middle  of  a  stone  wall "  is  too  indefinite  a  starting-point  for 
the  boundary  of  a  town  lot,  as  fixed  by  verdict.-  But  if  the  plaintiff 
demands  tlie  whole  of  a  piece  of  land,  the  verdict  may  be  for  an 
undivided  part.^  And  a  verdict  which  finds  that  the  plaintiff  is  the 
owner  of  the  land  is  sufficiently  explicit  as  to  title.*  So  a  verdict 
which  finds  the  defendant  guilty,  and  the  estate  established  in  the 
plaiutiif  to  be  an  estate  in  fee,  is  responsive  to  the  issue,  and  is 
sufficient.^  So,  on  a  plea  of  the  general  issue,  with  a  specification 
of  defence,  claiming  title  to  part  of  the  demanded  premises,  and 
disclaiming  as  to  the  residue;  a  verdict,  that  "the  tenant  did  not 
extend  his  building  over  land  of  the  demandant,"  is  a  good  find- 
ing in  favor  of  the  tenant  as  to  the  part  claimed  by  him,  since  the 
(Mass.)  St.  of  1836,  c.  273,  abolishing  special  pleading.'^  So  the 
verdict  set  out  the  wills  of  a  grandfather  and  father,  and,  if  a  son 
took  under  the  father's  will,  for  the  plaintiff;  if  under  the  grand- 
father's, for  the  defendant.  Held,  the  verdict  was  sufficiently 
certain,  and  submitted  to  the  court  merely  the  construction  of  the 
wills.'^  So  a  verdict  may  refer  to  monuments,  recorded  deeds,  or 
diagrams,  warrants  of  survey,  or  identified  agreements.^  (c) 


1  Loard  v.  Pliilips,  4  Sneed,  5GG :  5  ib. 
689. 

-  Ilajiey  i\  Detweiler,  35  renn.  409. 
'^  CaUis  V.  Kemp,  11  Gratt,  78. 
*  Uadluck  V.  lladlock,  22  Hi.  384. 


6  Good'iuie  r.  Baker,  22  111.  262. 
•J  JolinsDii  r.  Kavner,  G  Gray,  107. 
^  Callis  V.  Kemp,  11  Gratt.  78. 
^  Miller  v.  Casselberry,  47  Perm.  376. 


entitled  to  compensation  for  improve- 
ments, where  lie  sets  up  the  Statute  of 
Frauds  in  a  suit  to  enforce  specific  per- 
formance. Luckett  V.  Williamson,  37 
Mis.  38y. 

(n)  And  there  should  be  a  delay  of  the 
cause,  if  necessary  for  that  purpose. 
Brogan  v.  Savage,  5  Sneed,  G»y. 

(/')  Under  c.  152  of  Tennessee  St. 
1852,  a  verdict  for  tlie  plaintiff,  •which 
does  not  specify  the  plaintiffs  estate,  is  a 
nullity.  Van  i'osscu  r.  I'earson,  4 
Sneed,  3G2. 


(c)  A  verdict,  so  imcertain  that  judg- 
ment and  a  writ  of  possession  cannot  be 
founded  ujion  it,  must  be  set  aside,  lioe 
V.  Doe.  30  (in.  6118. 

A  verdict,  that  "  it  is  considered  by  the 
court  that  the  issues  are  for  the  plaintiff," 
is  substantially  defective,  in  not  stating 
what  estate  is  in  the  plaintiffs.  Patterson 
I?.  Hubbard,  30  III.  201. 

In  ejectment  aizainst  A  and  B,  the  jury 
found  "for  the  plainiiff  against  A  for  all 
the  land  described  in  the  writ  lying  west 
of  a  certain  road,  and  against  B  for  that 


224 


DISSEISIN,   EJECTMENT,   REAL   ACTION. 


[book   II. 


§  158.  The  judgment  in  ejectment  must  follow  the  complaint, 
and  the  execution,  the  judgment.^  (a) 


I  Orton  V.  Noonan,  18  Wis.  447. 
hart  1-.  llanklor,  Hi  III.  47. 


part  claimed  by  him  east  of  the  road,  as 
designated  on  the  draft  of  C,  and  for  tlie 
defeiulants  as  to  that  jjortion  east  of  the 
road  marketl  t)n  said  map  as  the  C  lot." 
Held,  the  verdict  was  not  void  for  un- 
certainty. Greeley  v.  Thomas,  56  Penn. 
35.  The  certainty  of  a  verdict  in  eject- 
ment may  be  established  by  reference  to 
somethini?  unquestionably  certain,  such  as 
monuments,  recorded  deeds,  diagrams 
filed  of  record,  warrants  of  survey,  or 
identified  agreements.  Where,  in  a  suit 
for  a  farm  and  grist  mill,  the  verdict  was 
for  a  reservation,  as  stipulated  in  a  certain 
agreement,  and  that  reservation  was 
one-third  of  the  profits  of  the  farm  and 
mill,  together  with  the  entire  use  and 
benefit  of  a  brick  house  and  store-room 
thereon  ;  the  verdict  is  not  so  uncertain, 
that  a  judgment  entered  upon  it  cannot 
be  executed.  The  verdict  for  the  rise  and 
benefit  of  the  house  and  store-room  is  a 
verdict  for  them.  It  is  not  the  less  certain, 
because  they  cannot  be  advantageously 
enjoyed  without  a  curtilage.  The  verdict 
for  one-third  of  the  profits  is  for  one-third 
of  the  land  itself,  during  the  plaintitt"s  life. 
Miller  v.  Casselberry,  47  Penn.  376. 

Where  the  verdict  is  for  seisin  and  pos- 
session and  nominal  damages ;  it  is  no 
ground  for  a  motion  in  arrest  that  a  small 
piece  of  land  is  covered  by  the  verdict, 
of  which  the  del'endant  is  not  in  posses- 
sion.    Russell's  V.  Maloney,  39  Vt.  579. 

A  verdict  in  favour  of  the  defendants 
for  undivided  two-thirds  of  the  land  in  dis- 
pute, omitting  to  state  that  for  the  other 
third,  for  which  A  had  previously  con- 
fessed judgment,  they  found  for  the  plain- 
tiffs, is  amendable.  Hence,  it  is  not  error, 
to  overrule  a  motion  in  arrest  of  judgment 
based  upon  the  defect.  Cambria  t.  Tombs, 
48  Penn.  387. 

A  judgment  will  be  reversed  if  the  record 
discloses  a  general  verdict,  not  designating 
upon  which  one  of  several  defences  it  was 
rendered,  if  some  of  the  defences  were  in- 
sufficiently pleaded.  Anderson  v.  Fisk, 
36  Cal.  625. 

A  conditional  verdict  should  always  fix 
the  time  when  the  money  is  to  be  paid. 
Thompson  v.  McKinley,  47  Penn.  353. 

Where  the  title  of  the  defendants  is 
legal,  and  they  have  no  equity  to  be  pro- 
tected, the  verdict    should   be   absolute. 


See      Taylor  w.Abbott,  41   Penn.   352;  Mink- 


But  where  the  error  is  in  their  favor, 
improperly  giving  an  opportunity  to  re- 
deem on  payment  of  the  mortgiige  with 
interest,  they  cannot  complain,  if  it  is 
error.  Murphy  v.  Nathans,  46  Penn. 
508. 

Where  a  homestead  riglit  attaching  to 
only  part  of  the  premises  is  set  up  as  a 
defence,  the  rest  may  be  recovered.  Par- 
dee V.  Lindley,  31  III.  174.  As  between 
the  successful  plaintiff  and  the  evicted 
defendant,  growing  crops  are  a  part  of 
the  realty.  Altes  v.  Hinckler,  36  III. 
275. 

Where  the  defendant  appears  to  defend 
for  the  whole  of  the  land  mentioned  in  the 
writ,  and  the  plaintiff  proves  his  title  to 
part  only  ;  the  verdict  is  to  be  entered  for 
this  alone.  Alcock  n.  Wilshaw,  2  Ellis  & 
E.  633. 

Though,  by  the  New  York  Code,  §  261, 
tlie  jury  can  only  be  required  to  answer 
specific  questions  of  fact  upon  a  general 
verdict,  they  may  do  it  by  consent;  in 
which  case  the  verdict  is  in  the  nature  of 
a  si)ecial  verdict.  Carr  v.  Carr,  4  Lans. 
314. 

A  verdict  "  in  fiivor  of  the  plaintiff 
against  the  defendants  for  the  possession 
of  the  premises  described  in  the  complaint 
herein,  and  the  sum  of  one  hundred  and 
sixty-five  dollars  damages  "  is  a  general 
verdict,  covering  all  the  issues.  The 
words,  "  for  the  possession,"  do  not  limit 
the  finding  to  anj-  particular  fact  or  issue. 
Hutton  V.  Reed,  25  Cal.  478. 

Where  one  claiming  under  the  laws  of 
Pennsylvania  recovers  twice  in  ejectment ; 
first,  in  the  name  of  A,  the  original  war- 
rantee, and  subsequently  by  deraigning 
title  to  himself  by  a  deed-poll  from  A, 
the  said  warrantee  :  the  two  verdicts  are 
conclusive,  and  constitute  an  estoppel 
under  the  Ejectment  Act  of  1807,  providing 
that  where  two  verdicts  shall,  in  any  suit 
in  ejectment  between  the  same  parties,  be 
given  in  succession  for  the  plaintiff  or  de- 
fendant, &c.,  no  new  ejectment  shall  be 
brought.  Evans  v.  Patterson,  4  Wall. 
224. 

When  a  verdict  is  in  favor  of  the  plain- 
tiff, he  alone  has  a  right  to  complain  that 
it  does  not  find  the  character  of  the  estate, 
and,  e.g.,  is  for  "  so  much  of  the  land  in 
the  declaration  as  is  included  in  the  lines 


[a)    As   to   judgment  by  default,  see 
Bolard  v.  Mason,  66  Penn.  138. 


Paterson    v.    Evans,    3   Wall.   Jr.  215; 


BOOK  II.]  JUDGMENT  —  EXECUTION.  225 

§  158  a.  One  not  made  party  to  an  action,  and  who  holds  under 
neither  party,  cannot  be  legally  dispossessed  under  a  writ  issued 
on  the  judgment.^  But  a  writ  of  possession  authorizes  the  put- 
ting out  of  all  who  have  come  into  possession  since  the  bringing 
of  suit,  notwithstanding  they  came  in  as  tenants  of  a  third  party, 
unless  he  came  in  before  suit  brought,  or  under  an  adverse 
title.'-^ 

§  158  h.  If  one  who  entered  pending  the  action,  claiming  under  a 
paramount  title,  is  ejected  ;  his  remedy  is  by  motion  for  a  writ 
of  restitution,  and  not  to  set  aside  the  judgment.'^ 

§  158  c.  After  judgment  against  the  tenant  in  possession,  upon 
whom  the  declaration  has  been  duly  served  ;  it  is  error  to  stay 
the  writ  of  possession,  on  a  suggestion  that  the  title  is  in  some 
other  person.* 

§  158  d.  It  is  the  duty  of  the  sheriff  to  execute  the  writ  oi  hohere 
facias,  by  ejecting  the  defendant  with  his  family,  though  the  wife 
set  up  title  in  herself.  The  husband  should  have  defended  his 
possession  upon  her  title.  Where  the  defendant  did  not  appear 
on  trial  of  the  ejectment,  but  after  execution  of  the  habere  facias  the 
wife  appears  ;  a  writ  of  restitution,  on  petition  setting  up  title  in 
her,  and  rule  granted,  is  irregular.  But,  as  the  judgment  did 
not  decide  the  question  of  title  in  the  wife,  the  order  awarding 
restitution  was  not  reversed,  but  the  plaintiff  left  to  his  action 
against  both  ;  especially  as  the  court  had  improperly  given  judg- 
ment on  the  plea  of  "  not  guilty  "  entered  for  the  defendant.^ 

1  Rockers  v.  Parish,  35  Cal.  127  ;  Smith  ^  Sinchiir  v.  Worthy,  1  Wins.  No.  1, 
V.  Pretty,  22  Wis.  655.                                     114. 

2  Leese  v.  Clark,  29  Cal.  664  5  Johnson  i'.  Fullerton,  44  Penn.  466. 
8  Smitli  V.  Pretty,  22  Wis.  655. 

SP,  PA,  AG,  and   GS,  as   is  deUneated  trespassers,  though  no  fact  is  stated  re- 

on   the  plat  of,"  &c.     Where  a   verdict  spectinji  the  defendants'  claim   of  title  ; 

gave   the    plaintiff  the  hounds   and    line  it  will  he  presumed  that  the  title  was  in 

claimed  in  his  declaration,  and  the  plat  of  tlie  plaintiff,  that  he  was  entitled  to  pos- 

the  surveyor  made  in  the  cause  sliowed  session,  and  that,  in   tiie  absence  of  any 

tliat  the  land  therein  enclosed  contained  showing  to  the  contrary,  the  evidence  sus- 

nine  acres  ;  held,  the  verdict  ought  not  to  tained  such  imjjlied  finding.     The  losing 

be   set   aside,    altliough    the    declaration  party,  in  moving   for   a  new  trial,    may 

claimed  "  five  acres  of  land."     The  sur-  avail  himself  of  the  insufficiency  of  the 

veyor's  report  was  no  part  of  the  verdict,  evidence  to  sustain  the  implied  finding, 

Elliott  V.  Sufor,  3  W.  Va.  37.  without  excepting  to  the  want  of  express 

Under  (Cal.)  St.  of  1861,  p.  580,  and  findings.      But   it    must   appear   that  lie 

§  180  of  tlie  Practice  Act,  as  amended  in  introduced  evidence  to  prove — not  merely 

1866,  from  a  finding  in  ejectment  that  the  "  teiuhng   to   prove"  —  a   state   of  facts 

defendants  were    in  possession,  and  that  adverse  to  those  impliedly  found.     In  such 

the  plaintiff  deraigns  title  thereto,  under  case   the  court  will,  if  re(|uested,  sjiecify 

a  patent  from  the   United   States,  issued  in  the  findings  the  facts  constituting  the 

to  his  grantor,  and  was  owner  and  entitled  claim  of  title  set  up  by  the  ojiiiosite  party. 

to  possession,  and  the   defendants  were  Morrill  v.  Chapman,  35  Cal.  85. 

15 


226 


DISSEISIN,   EJECTMENT,  REAL    ACTION. 


[book  II. 


§  158  e.  If  the  defendant  quits,  or  has  only  had  constructive 
possession,  no  liab.  fac.  is  necessary.^ 

§  158/.  Where  the  plaintiff  is  put  in  possession  by  a  writ  of 
hah.  fac,  and  is  then  ejected  b}'  one  claiming  under  the  defendant ; 
he  may  have  an  alias  before  the  return  day  of  the  first  writ.^  (a) 


I  Craft  V.  Yeaney,  G6  Penn.  210. 


(a)  Opinion  by  Brewster,  J. — This  is 
amotion  for  a  special  injunction  to  restrain 
certain  parties  from  executing  a  writ  of 
haberi  facias  possessionem. 

The  plaintiff  avers  that  he  is  in  posses- 
sion of  the  premises  described  in  the  bill 
under  an  agreement  for  the  purchase 
thereof  from  two  of  the  defendants,  and 
that  he  has  expended  large  sums  of  money 
in  improving  the  property. 

Tlie  plaintiff's  vendors  accepted  service 
of  a  summons  in  ejectment  for  the  land  in 
question,  returnable  on  the  first  Monday 
of  June,  1869.  On  the  18th  day  of  June, 
1869,  the  vendors  confessed  judgment,  and 
an  haberi  was  issued  on  the  judgment, 
under  which  the  plaintiff  may  shortly  be 
turned  out  of  possession  of  the  property. 

The  ejectment  was  commenced,  and  the 
judgment  was  confessed  in  the  District 
Court  of  this  city  and  county.  The  plain- 
tiff here  was  no  party  to  that  proceeding; 
he  avers  that  he  had  no  notice  thereof, 
and  that  the  writ  was  issued  and  the 
judgment  confessed  with  intent  "  fraudu- 
lently and  wrongfully  ...  to  deprive 
him  of  his  rightful  possession  of  the 
premises." 

These  allegations  are  unanswered  and 
uncontradicted.  The  question  thus  pre- 
sented for  decision  is,  whether  the  equi- 
table owner  of  land  can  be  turned  out  of 
possessitm  under  a  writ  issued  upon  a 
judgment  confessed  by  third  parties  1  Had 
the  summons  in  ejectment  been  served,  the 
case  would  be  different,  but  here  the  ser- 
vice was  accepted.  It  is  plain,  therefore, 
that  under  such  a  proceeding  no  man  can 
be  ejected  excepting  the  person  confessing 
the  judgment. 

The  whole  scope  of  our  statute  law  upon 
the  subject  of  ejectment  indicates  the 
necessity  of  notice.  The  writ  itself  must 
aver  that  the  defendant  hath  the  land  "  in 
his  actual  possession."  (Br.  Uig.  364,  §  6.) 
Tenants  are  to  give  notice  (under  penalty 
for  default)  to  their  landlords.  (lb.  §2.) 
The  sheriff,  finding  a  person  in  possession 
not  named  as  defendant,  must  add  his 
name  and  serve  him.  (Br.  365,  §  5.)  No 
judgment  by  default  can  be  entered  with 
out  affidavit  of  service  (lb.);  and  cita- 
tions   might   be  multiplied  from    almost 


2  Van  Rensselaer  v.  Whitbeck,  2  Lans. 

498. 

every  section  of  the  law  to  show  the  jeal- 
ousy with  which  the  right  of  notice  has 
been  guarded.  Indeed,  this  principle  is  not 
peculiar  to  the  action  of  ejectment :  it  per- 
vades all  law.  It  is  abhorrent  to  one's  sense 
of  natural  justice  that  a  man  should  be  de- 
prived of  the  possession  of  property  with- 
out having  an  opportunity  of  a  hearing. 
Where  this  is  attempted  by  fraud  —  and 
especially  where  legal  process  is  invoked  — 
the  wrong  becomes,  if  possible,  still  more 
aggravated.  It  follows,  if  these  views  are 
correct,  that  the  acts  of  the  defendants 
are  contrary  to  both  law  and  equity  ;  they 
are  highly  prejudicial  to  the  right  of  the 
plaintiff,  and,  as  such,  the  subject  of  injunc- 
tion, unless  some  sufficient  reason  against 
the  issuing  of  the  writ  is  exhibited  by  the 
defence.  This  naturally  brings  us  to 
the  consideration  of  the  matters  suggested 
in  opposition  to  this  motion.     They  are  — 

1st.  That  the  plaintiff  has  his  adequate 
remedy  at  law. 

2d.  That  the  premises  in  question  are 
subject  to  the  lien  of  a  mortgage  given  by 
the  defendants,  Wimley  and  Walter,  to 
Elizabeth  Krail  et  al.,  July  19,  1866,  re- 
corded in  M.  B.  L.  U.  B.,  No.  82,  p.  28, 
&c.,  that  this  mortgage  was  duly  assigned 
to  the  plaintiff  in  the  ejectment,  who  in- 
stituted that  proceeding  in  order  to  collect 
his  mortgage.  That  ejectment  will  lie  by  a 
mortgagee  to  enforce  payment  of  the  debt 
is  well  settled,  and  has  been  recognized  as 
lately  as  Guthrie  i'.  Kahle,  10  Wr.  333. 

But  it  is  equally  clear,  that  the  judg- 
ment should  be  conditional,  and  that, 
likening  it  to  the  equity  order  of  fore- 
closure, there  should  be  indulgence  shown 
to  the  mortgagor.  The  chancellor  will  en- 
large the  time  for  payment  even  after  an 
order  absolute  of  foreclosure  has  been 
signed  and  enrolled.  Thornhill  v.  Manning 
(1  Sim.  N.  S.  451).  In  Finch  v.  Shaw  (20 
Beav.  555),  the  time  appointed  for  redemp- 
tion was  enlarged  pending  an  appeal  to 
the  House  of  Lords.  That  the  original 
mortgagor  could  waive  all  these  rights  is 
very  plain,  but  their  waiver  can  affect  no 
other  person.  Here  a  third  party  lias 
acquired  rights.  The  true  light  in  which 
to  view  this  case,  is  to  regard  it  as  if  the 
plaintiff  liad  paid  all  his  purchase-money 


BOOK  II.] 


JUDGMENT  —  EXECUTION. 


227 


§  159.  Witli  regard  to  the  effect  of  a  judgment;  altliougli  not 
conclusive,  yet,  if  title  was  really  suggested  and  decided,  and  pos- 
session under  the  title  given,  there  can  be  no  better  evidence  of 
title  in  the  court  of  chq,ncery.i  (a) 

§  IGO.  Where  two  ejectments  had  been  brought  for  parts  of 
the  same  land,  in  one  of  which  a  verdict  and  judgment  were  given 
for  the  undivided  moiety  of  a  lot,  and  in  the  other  for  the  entire 
tract ;  held,  they  were  conclusive  as  to  the  moiety  only,  and  a 
third  action  would  lie  for  the  remainder  of  the  land.^ 

§  161.  Where  a  former  judgment  is  set  up,  parol  evidence  is 
admissible  as  to  identity.^ 

§  161  a.  A  plea  of  a  former  recovery  in  ejectment  against  one 
of  several  plaintiffs  is  bad  as  a  general  defence  to  the  whole 
action.'^ 

§  162.  A  deed,  conveying  land  to  the  county,  upon  a  condi- 
tional limitation,  for  a  court-house,  contained  a  covenant  that, 
should  the  building  erected  cease  to  be  occupied  as  a  court-house. 


1  Obert  V.  Obert,  2  Stockt.  98. 

2  Kinter  v.  Jenks,  43  renn.  445. 

and  bail  received  bis  deed.  Could  it  be 
tolerated,  that  a  mortgaijor  wlio  bad  con- 
veyed the  land  should  be  permitted  to 
confess  a  judgment  in  favor  of  the  mort- 
gagee, and  that,  without  demand  or  notice, 
tiie  owner  couUl  be  ejected  ? 

It  seems,  tlien,  to  be  very  clear,  that 
the  mortgage  title  of  the  ejectment  plain- 
tifi'gives  him  no  peculiar  advantages. 

There  remains  to  be  considered  tiie  other 
objection,  tluit  tiie  plaintiff  lias  his  ade- 
quate remedy  at  law.  I  do  not  pause  to 
consider  vviietiier  he  could  obtain  a  writ  of 
restitution.  In  Joliiison  v.  Fullerton,  8 
"Wr.  4G8,  tiie  wife  iiad  been  ejected  under 
an  haberi  against  lier  husband.  Tlie 
Common  Pleas  of  Erie  county  gave  her  a 
writ  of  restitution,  and  the  Supreme  Court 
affirmed  the  order.  But  they  did  so  ex- 
pressly upon  the  ground  that  the  plaintiff 
would  not  gain  "  any  thing  by  setting  aside 
the  restitution."  As  to  the  writ,  Chief 
Justice  Lowrie  said  :  "  The  service  (of  the 
summons)  was  not  irregular,  and  there- 
fore, could  not  he  set  aside,  and  without 
getting  it  aside,  a  writ  of  restitution  is 
irregular,  and  has  nothing  in  the  record  to 
justify  it." 

Upon  that  principle,  possession  could 
never  be  restored  to  this  plaintiff.  But 
suppose  he  could  obtain  restitution  or 
ample  damages,  is  he  thereby  deprived  of 
his  right  to  equitable  relief?     It  matters 


3  Meyers  v.  Hill,  4G  Penn.  9. 

4  Anderson  v.  risk,  36  Cal.  625. 

not  tliat  there  be  some  remedy  for  the 
wrong  to  be  enjoined.  There  should  be  ; 
there  generally  is  redress  at  law  for  every 
injury.  But  this  does  not  oust  the  juris- 
diction of  a  chancellor.  The  vital  question 
always,  is  this  :  Will  the  remedy  be  ade- 
quate 1  Apply  that  here,  and  let  us  ask 
ourselves,  bow  many  restitutions,  and 
what  amount  of  damages,  will  compen- 
sate a  man  for  being  ejected  from  bis 
home.  "We  protect  a  party-wall  from 
breach  without  compensation,  and  surely 
we  should  not  allow  a  man  to  be  spoiled 
of  his  entire  house  upon  the  allegation 
that  the  trespassers  can  rcsjiond  in  dam- 
ages. The  injunction  is  granted. — King 
y.'Wimley  et  al.    (Leg.  Intell.). 

(«)  The  (Pennsylvania)  Act  of  April 
21,  1846,  restores  the  rule  making  one 
judgment  in  ejectment  conclusive,  only 
in  cases  "  wherein  time  becomes  of  the 
essence  in  the  finding  of  the  jury,  or  in  a 
judgment  by  confession,  by  fixing  a  time 
for  such  payment "  of  purchase-money. 
L3'kens  v.  Tower,  27  Penn.  4()2. 

In  New  York,  under  the  Revised  Stat- 
utes, a  judgment  in  ejectment  is  conclu- 
sive as  to  parties  and  privies.  Hence  the 
action  is  one  atlecting  title,  and  notice  of 
lis  pendtns  must  be  filed  under  §  132  of 
the  Code.  Sheridan  v.  Andrews,  3  Laos. 
129. 


228 


DISSEISIN,   EJECTMENT,  REAL   ACTION. 


[book  II. 


the  county  might  remove  it  within  a  reasonable  time.  Held,  in  a 
writ  of  entry,  that  this  right  in  the  tenant  was  no  objection  to  a 
general  judgment  for  the  demandant ;  and  a  motion  for  a  quali- 
fied judgment,  reserving  the  right,  was  denied.^ 

§  163.  In  Louisiana,  when  the  defendant  in  a  petitory  action  is 
evicted  from  land  upon  which  he  has  for  several  years  paid  the 
taxes,  the  writ  of  possession  should  be  suspended  until  the  taxes 
are  refunded  to  the  defendant,  as  negotiorum  gestor  of  the  plaiu- 
tiflF.2  (a) 


1  Wood  V.  Cheshire,  32  N.  H.  421. 

(a)  In  some  States,  an  erroneous  judg- 
ment in  ejectment  is  corrected  by  the 
summary  process  of  restitution.  Thus,  in 
Pennsylvania,  where  a  defendant  lias  been 
deprived  of  the  possession  of  liis  premises 
under  an  execution  on  an  erroneous  judg- 
ment, he  is  entitled,  upon  reversal,  to  be 
restored  to  the  possession  without  further 
action,  and  also  to  the  crops,  either  by 
judgment  of  restitution  or  by  an  action  on 
the  case.  Breading  v.  Blocher,  29  Penn. 
347. 

In  Mississippi,  after  judgment,  by  which 
the  plaintiff  takes  under  the  halxre  facias 
more  than  he  is  entitled  to  recover,  tlie  de- 
fendant cannot  have  restitution  by  motion 
in  the  court  issuing  the  writ,  if  tlie  prem- 
ises are  specifically  described  in  the  judg- 
ment. Natchez  v.  Vandervelde,  31  Miss. 
706. 

In  Massachusetts,  in  an  action  for  land 
in  which  tlie  defendant,  a  married  woman, 
has  a  homestead,  a  qualified  judgment 
for  possession  may  be  given,  subject  to 
this  right.   Castle  v.  Palmer,  6  Allen,  410. 

In  ejectment  by  vendor  against  vendee, 
the  advertisement  of  notice  for  sixty  days, 
as  required  by  the  (Penn.)  Act  of  14th 
April,  1851,  is  not  sufficient  to  authorize 
judgment  for  default.  Notice  in  fact  is 
necessary,  as  required  by  the  proviso  to 
the  Act  of  1858.  Haslett  v.  Foster,  46 
Penn.  471.  A  confession  of  judgment  is  a 
voluntary  waiver  or  estoppel  of  all  rights, 
under  the  (Penn)  Statute  of  April  13, 1807, 
or  at  common  law.  It  bars  a  subsequent 
ejectment  for  the  same  land,  between  the 
same  parties  or  their  privies.  Secrist  v. 
Zimmerman,  55  Penn.  446. 

Payment  of  costs  is  a  condition  prece- 
dent to  an  absolute  order,  setting  aside  a 
judgment  by  default,  on  an  application 
under  the  (III.)  statute.  Oetgen  v.  Koss, 
36  111.  335.  A  judgment,  that  "  the  plain- 
tiffs have  a  fee-simple  title  to  the  prem- 
ises "  is  erroneous,  when  a  portion  of 
them  are  tenants  by  the  curtesy.  Patter- 
son u.  Hubbard,  30  111.  201. 


^  Weber  v.  Coussy,  12  La.  An.  534. 

The  defendant  denied  the  plaintiff's 
right  of  possession,  but  set  up  no  title. 
Judgment  was  entered  for  the  plaintiff, 
but  on  writ  of  error  it  was  reversed,  and 
a  mandate  issued  to  the  court  below,  "  to 
enter  judgment  for  the  defendant."  Held, 
an  entry  by  the  court  below,  that  the 
defendant  hath  right  to  the  lands  claimed 
in  the  declaration,  was  erroneous.  The 
judgment  should  have  been  entered,  that 
the  plaintiff  hath  no  title.  Litchfield  v. 
Kailroad,  7  Wall.  270. 

After  judgment  for  the  plaintiff,  and 
after  he  was  put  in  possession,  the  defend- 
ant took  an  order  for  a  new  trial  under  the 
(Wis.)  statute,  and  the  cause  was  after- 
wards dismissed,  by  a  stipulation  of  the 
parties  entered  by  the  clerk  in  the  rule 
book,  wliich  stated  also  that  the  costs  were 
paid.  Held,  the  stipulation  would  have 
authorized  a  judgment  for  the  defendant, 
with  an  order  that  he  be  put  in  posses- 
sion. But,  no  such  judgment  having  been 
entered,  the  court  above  refused  to  inter- 
fere with  an  order  of  the  court  below, 
directing  the  plaintiff  to  deliver  possession 
to  the  defendant.  Wakeley  v.  Delaplaine, 
15  Wis.  554. 

A  judgment  in  ejectment  is  held  not  a 
bar  to  a  subsequent  action  between  the 
same  parties  as  to  the  same  sul)ject-mat- 
ter.    Holmes  v.  Carondelet,  38  JNlis.  551. 

A  judgment  in  ejectment  is  not  conclu- 
sive, except  as  against  defences  actually 
made,  or  which  might  have  been  made. 
It  does  not  preclude  a  defendant  from  as- 
serting a  title  subsequently  acquired.  A 
defendant  evicted  in  ejectment  by  a  writ 
of  restitution  is  estopped  to  deny  that  his 
prior  possession  was  wrongful.  Mann  v. 
Rogers,  35  Cal.  316. 

The  dismissal  of  an  action  of  ejectment, 
at  the  instance  of  the  plaintiff,  settles  no 
rights  of  the  parties,  is  not  an  admission 
of  any  right  or  title  in  the  defendant,  and 
is  not  a  bar  to,  and  cannot  be  shown  in 
evidence  in,  a  second  action.  Van  Vliet 
V.  Ofin,  1  Nev.  495. 


BOOK  II.] 


JUDGMENT  —  EXECUTION. 


229 


Where  a  plaintiff  is  defeated  in  one  suit, 
in  which  lie  claimed  umler  a  void  instru- 
ment, he  is  not  thereby  Larrod  from  a  sub- 
sequent suit,  where  he  claims  under  a  A'alid 
instrument,  by  which  he  has  acquired  title 
since  tlie  former  suit ;  althougii  a  State 
statute  provides,  that  every  judgment  in 
ejectment  shall  be  conclusive  as  to  the 
title  established  in  the  action  upon  the 
party  against  whom  the  judgment  is  ren- 
dered. Barrows  v.  Kindred,  4  Wall.  3U9. 
After  judgment  for  the  plaintiff  in  eject- 
ment, brought  for  non-payment  of  rent, 
the  defeiulant  cannot  show,  in  a  bill  in 
equity  brought  to  restrain  the  execution, 
that  the  rent  ought  to  have  been  reduced. 
Sheets  V.  Selden,  7  AVall.  41G. 

Where  a  land-owner  lias  obtained  a  ver- 
dict and  judgment  for  land  taken  by  tiie 
State  in  the  construction  of  the  canal,  in  a 
proceeding  instituted,  in  185'.l,  against  the 
vendees  of  the  State,  under  (Penn.)  Act  21 
April,  1858  ;  he  cannot,  after  the  execution 
is  returned  "  nulla  bona,"  recover  the  land 
in  ejectment.  The  State,  having  title,  con- 
veyed to  the  canal  company,  who  became 
liable  for  the  damages  occasioned  by  the 
taking,  in  the  mode  pointed  out  by  law, 
to  be  recovered  by  execution  ;  but  the 
original  owner  had  no  title  upon  which  to 
sustain  ejectment.  North  v.  Hireeu,  44 
Penn.  418. 

The  reasons,  whicli  render  inconclusive 
one  trial  in  ejectment,  have  force,  when 
the  action  is  brought  in  the  fictitious  form 
practised  in  England,  and  known  partially 
among  ourselves  ;  but  they  apply  imper- 
fectly, and  have  little  weight,  when  the 
action  is  brought  in  the  form  now  usual  in 
the  United  States,  and'  where  parties  sue 
and  are  sued  in  their  own  names,  and  the 
position  and  limits  of  the  land  claimed  are 
described.  They  have  no  force  at  all, 
where  the  modern  form  is  prescribed,  and 
where,  by  statute,  one  judgment  is  a  bar. 
Miles  V.  Caldwell,  2  Wall.  35 ;  Sturdy  v. 
Jackaway,  4  Wall.  174. 

Some  points  of  practice,  often  of  a  local 
nature,  connected  with  the  subject  of  this 
chapter,  demand  a  brief  notice.  See  Short 
V.  Coulee,  28  111.  219. 

A  receiver  is  sometimes  applied  for  in  the 
action  of  ejectment.  But  wliere  the  plain- 
tiffs in  an  action  for  a  mill,  but  with  a 
doubtful  right,  ap])lied  for  a  receiver,  on 
the  ground  that  they  believed  that  the  pos- 
sessor was  insolvent,  and  that  the  property 
could  not  be  left  in  his  possession  without 
injury  to  them ;  a  receiver  was  refused. 
Cofer  V.  Echerson,  6  Clarke  (Iowa), 
502. 

A  statute,  requiring  security  for  costs 
and  damages  to  be  filed  by  a  tenant  liold- 
ing  over,  before  he  can  be  admitted  to 


plead  in  ejectment,  applies  in  favor  of  a 
party  who  purchased  the  land  during  the 
lease.  Shannonhouse  v.  Bagley,  3  Jones, 
295. 

The  affidavit,  required  by  statute  to  be 
made  by  the  lessor  of  the  plaintiff  to  com- 
pel such  security  for  damages,  need  not 
state  the  length  of  the  term,  or  whether  it 
was  for  years,  or  from  year  to  year.  lb. 
See  Farnsworth  t".  Agnew,  27  111.  42. 

The  acts  of  assembly,  in  Pennsylvania, 
allowing  writs  of  estrepement  in  ejectment, 
are  only  declaratory  of  the  common-law 
authority  of  the  courts,  and  were  passed 
because  tliis  jiower  was  not  exercised  as 
fully  as  it  should  have  been.  The  writ 
of  estrci)ement  may  be  dissolved  by  the 
court,  on  hearing,  with  or  without  se- 
curity. If  security  be  ordered,  a  bond  to 
the  i)Iaintiff  is  a  proper  form  of  giving  it. 
Berne  v.  Boyle,  37  Penn.  2G0. 

In  California,  the  court  can  restrain 
waste  pending  the  action.  Natoma,  &c.  y. 
Clarkin,  14  Cal.  544.  But,  for  that  pur- 
pose, the  plaintiff  should  add  to  the 
ordinary  complaint  a  distinct  paragraph, 
stating  the  grounds  on  which  tlie  special 
relief  is  asked,  and  praying  for  it.  lb. ; 
Atwell  V.  Rk'Lure,  4  Jones,  371. 

In  England,  where  a  writ  in  ejectment 
has  not  been  addressed  to,  but  has  been 
served  on,  the  tenant  in  possession,  it  is 
questionable  whether  the  tenant  can  apply 
to  set  the  writ  aside  as  irregular.  But  if, 
instead  of  so  applying,  he  applies  for  par- 
ticulars or  for  other  information,  and  allows 
ten  days  to  elapse,  he  will  be  deemed  to 
have  waived  the  irregularity,  supposing  it 
to  be  such,  and  his  application  should  then 
be,  not  to  set  aside  the  writ,  but  to  be  al- 
lowed to  appear  and  defend.  Thompson 
V.  Slade,  37  Eng.  L.  &  Eq.  582. 

Where  a  landlord  or  lessor  proceeds  by 
ejectment,  under  the  15  &  IG  Vict.  c.  76, 
for  the  recovery  of  a  dwelling-house  and 
other  premises  demised  by  one  lease ;  if 
the  dwelling-house  is  unoccupied,  and  the 
rest  of  the  premises  are  in  the  occui)ation 
of  a  tenant,  service  of  the  writ  of  eject- 
ment may  be  effected  by  personally 
serving  the  tenant  with  a  copy,  and  affix- 
ing another  on  the  front-door  of  the  dwel- 
ling-house. Clinton  v.  Wales,  38  Eng.  L. 
and  Eq.  442. 

The  commencement  of  an  action  of 
ejectment  is  the  service  of  the  declaration. 
Thompson  v.  Red,  2  Jones,  412. 

In  Illinois,  a  motion  for  a  new  trial  in 
ejectment,  upon  common-law  grounds, 
may  be  granted  ;  but,  if  applied  for  under 
the  statute,  (he  conditions  required  must 
be  complied  with.  Goodhue  v.  Baker, 
22  111.  2G2.  See  Singer  v.  Belt,  8  Ohio, 
(N.  S.)  291. 

In  Michigan  (and  some  other  States)  o 


230 


DISSEISIN,   EJECTMENT,  EEAL   ACTION. 


[book  II.] 


second  trial  is  allowed  as  matter  of  right. 
People  V.  Judge,  21  Mich.  372. 

The  demandant  may  have  judgment 
upon  a  review,  although  after  a  verdict  in 
his  favor,  but  before  judgment,  he  made 
a  conveyance  of  the  property.  Berry  v. 
Whitaker,  58  Maine,  422. 


Wliere  the  defendant  pleaded  7iot  guilty, 
afterwards  disclaimed  three-fourths  of  the 
land,  and  a  verdict  was  rendered  for  the 
respective  parties  accordingly ;  held,  the 
plaintiff  should  recover  costs  accruing 
before,  and  the  defendant  after,  the  dis- 
claimer.    Lane  v.  Harrold,  66  Penn.  319. 


[book  III.  CH.  I.]    GENERAL  RULES  OF  PLEADING.  231 


BOOK     III. 

PLEADING. 

CHAPTER    I. 

GENERAL  RULES  OF  PLEADING. 

1.  Tort  and  coiitract;  definition  and  pur-  8  a.  Allegation  that  the  plaintiff  was  not 

poses  of  pleading.  in  fault. 

2  a.  Recent  statutory  changes  on  the  sub-  9.  Variance;  the  plendings  and   evidence 

ject.  must  conform  ;  limitations  and  exceptions. 

3.  Pleadings  must  state  facts.  11  a.    Truth  of  a  plea. 

4.  Pleading  in  case  of  statutis.  11  b.  Dejxirture. 

8.  Allegation  of  direct  or  immediate  in-         12.  Directness  and  certainty, 
jury.  14  a.  Pleading  in  case  of  fraud. 

15.  Statement  of  a  legal  conclusion. 

§  1.  The  general  principles  of  pleading  are  not  materially  dif- 
ferent in  actions  of  tort  and  of  contract,  (a)  The  following  defi- 
nition, therefore,  though  general  in  its  terms,  forms  a  proper 
introduction  to  the  present  division  of  this  work. 

§  2.  "  Pleading  is  the  statement  in  a  logical  and  legal  form,  of 
the /ads,  which  constitutes  the  plaintiff's  cause  of  action,  or  the 
defendant's  ground  of  defence ;  it  is  the  formal  mode  of  alleging 
that  on  the  record,  which  would  be  the  support  or  the  defence  of 
the  party  in  evidence.  .  .  .  The  observations  of  Lord  Chief  Jus- 
tice De  Grey,  on  the  structure  of  an  indictment,  are  very  forcible, 
and  equally  applicable  to  the  pleadings  in  civil  actions  :  '  The 
charge  must  contain  such  a  description  of  the  injury  or  crime, 
that  the  defendant  may  know  what  injury  or  crime  it  is  which  he 
is  called  upon  to  answer,  that  the  jury  may  appear  to  be  war- 
ranted in  their  conclusion  of  "  guilty  "  or  "  not  guilty"  upon  the 
premises  delivered  to  them,  and  that  the  court  may  see  such  a 

{a)  Tlie  consideration,  that  the  present  subject  of  pleading    in    tlie    exhaustive 

work,  like  the  one  to  whicli  it  is  designed  mode  which  is  adojited  by  works  relating 

as  a  supjilenient,   relates   exclusively  to  to  that  branch   of  the  law   alone.      Tlie 

torts,  wiW  furnish  a  sufticient  reason  for  a7/«s</a</o«s  are  exclusively  cases  of  tort, 
not  treating  the  important  and  copious 


232 


PLEADING. 


[book   III. 


definite  injury  or  crime,  that  they  may  apply  the  remedy  or  the 
punisliment  which  the  law  prescribes.'  "  ^  (a) 

§  2  a.  The  pleadings  in  actions  for  torts,  as  in  other  actions,  have 
become  a  subject  of  comparatively  less  importance,  in  consequence 
of  the  numerous  statutory  provisions  in  the  several  States,  hav- 
ing for  their  object  to  do  away  with  many  technical  formalities, 
with  which  they  have  heretofore  been  incumbered,  (b)  Still 
however  it  will  be  found,  on  examining  the  recent  American  re- 
ports, that  the  changes  in  question  have  not  prevented  the  con- 
stant occurrence  of  questions  relating  to  the  sufficiency  of  the 
declaration  and  subsequent  pleadings ;  often  requiring,  for  their 
solution,  by  way  of  analogy,  though  not  of  absolute  requirement, 
the  application  of  those  ancient  rules  which  it  has  been  attempted 
to  abrogate,  (c) 

1  1  Chit.  PI.  217. 


(«)  "The  established  principles  of 
pleading,  wliich  compose  wliat  is  called 
its  science,  are  rational,  concise,  harmoni- 
ous, and  admirably  adapted  to  the  inves- 
tigation of  truth."  Chancellor  Kent, 
Bayard  v.  Malcolm,  1  Johns.  471. 

A  brief  but  very  just  and  well-expressed 
encomium  upon  "  the  science  of  plead- 
ing" is  found  in  "  the  Reporters  "  of  Mr. 
Wallace,  in  his  notice  of  Saunders  ;  whose 
reports  it  is  stated  that  Mr.  Webster 
translated  from  the  Latin,  and  thus,  in  his 
own  words,  made  himself  "  familiarly  and 
accurately  acquainted  with  the  language 
of  pleading." 

(b)  See  Toule  v.  Urquhart,  44  Ala. 
646  ;  Southern  v.  Crook,  ib.  468.  "  One 
of  the  main  purposes  of  the  Practice  Act 
was  to  dispense  with  all  useless  and  im- 
material averments,  which,  under  the  old 
rules  of  pleading,  were  deemed  essential." 
Per  Bigelow,  J.,  Knapp  v.  Siocomb,  9 
Gray,  74. 

(c)  The  following  decisions  in  different 
States  sufficiently  indicate  the  nature  and 
purposes  of  these  statutory  changes  :  — 

It  is  held,  in  California,  that  only  the 
forms  of  pleading  are  abolished  ;  the  sub- 
stantial allegations  remain  the  same. 
Miller  v.  Van  Tassel,  24  Cal.  463. 

Though  by  the  Mississippi  Act  of  1850, 
abolishing  the  forms  of  pleading,  no  com- 
plete and  well-defined  system  of  pleading 
was  established ;  yet  it  is  not  probable 
that  any  substantial  remedy  for  wrong 
was  intended  to  be  taken  away,  but  that 
only  the  form  of  asserting  it  was  intended 
to  be  altered.  Cooper  v.  Benson,  28 
Miss.  766. 

When  a  statute,  prescribing  a  form  of 


declaration,  dispenses  with  an  averment 
which  would  otherwise  be  indispensable  ; 
the  statute,  by  dispensing  with  the  aver- 
ment, stands  itself  in  the  place  of  such 
averment.  Shinloub  i'.  Ammerman,  7 
Ind.  347. 

The  Kentucky  code  of  practice  has 
abolished  the  pre-existing  forms  of  action 
and  of  pleading.  It  provides  that  the 
petition,  the  only  process  by  which  a  suit 
can  be  instituted,  must  contain  a  state- 
ment of  facts  constituting  the  plaintitf's 
cause  of  action,  in  ordinary  and  concise 
language,  without  repetition  ;  with  a  very 
few  additional  rules  respecting  the  mode 
or  manner  of  alleging  the  facts  relied  on. 
It  makes  no  change  in  the  law  which  de- 
termines what  facts  constitute  a  cause  of 
action.  This  is  determined  by  the  gen- 
eral rules  or  principle^  of  law  respecting 
rights  and  wrongs,  and  by  a  long  course 
of  adjudications  and  practice.  It  does 
not  authorize  a  recovery  on  a  statement 
of  facts  which  did  not  before  constitute  a 
cause  of  action  in  some  form.  It  requires 
that  where  the  action  is  founded  on  a 
writing,  such  writing  shall  be  filed  as  a 
part  of  the  petition,  which  implies  that  it 
shall  also  be  referred  to  therein,  and  does 
not  dispense  with  the  necessity  of  stating 
so  much  of  the  contract  as  shows  that  the 
plaintilf,  by  reason  of  the  alleged  acts  or 
omissions,  on  his  part,  and  of  those  on 
the  part  of  the  defendant,  is  entitled  to  an 
action  and  to  relief.  Hill  v.  Barrett,  14 
B.  Mon.  83. 

So  the  statutory  blending  of  law  and 
equity  affects  only  forms,  not  principles. 
Magwire  v.  Tyler,  47  Mis.  115. 

See,  also.  Trustees,  &c.  v.  Rowell,  49 


CH.  I.] 


GENERAL  RULES  OP  PLEADING. 


233 


§  3.  A  declaration  or  plea  must  allege  issuable  facts,  not  those 
facts  and  circumstances  which  merely  go  to  establish  other  essen- 
tial facts  ;^  nor  the  evidence  of  facts  ;^  (a)  nor  the  legal  result 
of  facts,  or  arguments  and  inferences.'^  Thus,  an  allegation  of 
duty,  without  stating  the  facts  which  raise  the  duty,  is  insuffi- 
cient>  So  to  a  suit  to  recover  possession  of  personal  property, 
an  answer,  that  the  defendant  is  entitled  to  the  possession,  is 
bad;  it  should  set  out  the   grounds  of  his  right.°     And  a  plain- 

1  Knowles  v.  Gee,  8  Barb.  300 ;  Den-         ^  Boyce  v.  Brown,  7  Barb.  80 ;  How- 

nistown  i\  Merchants', 2  Disn.  (Ohio)  52;  ard  v.  Tiffany,  3   Santlf.  6'.)5;  Randall  v. 

Hewett  V.  Harvey,  46  Mis.  368.  Shropsliire,  4  Met.  Ky.  327. 

-  Stone  V.  l)e  Puga,  4    Sandf.  681  ;         *  Hewison  v.  New   Haven,  84  Conn. 

Bomberger  r.  Turner,  13  Oliio  St.  263 ;  136. 
Corwin  v.  Corwin,  9  Barb.  219 ;  ib.  158.  &  McTaggart  v.  Rose,  14  Ind.  230. 


Maine,  330 ;  Parsley  v.  Nicholson,  65 
N.  C.  207 ;  Fry  v.  Bennett,  5  Sandf.  54  ; 
Hartman  r.  Keystone,  &c.,  21  Penn.  466; 
Boyce  i'.  Brown,  7  Barb.  80. 

[a)  The  ultimate,  or  ii^snnblc  fact  is  the  only 
fact  a  pleader  is  called  upon  or  ought  to 
state,  not  probatire  facts.  Miles  v.  McDer- 
mott,  31  Cal.  271. 

Where,  in  an  action  upon  a  replevin 
bond,  a  transcript  of  the  proceedings  in 
the  replevin  suit  is  filed  with  the  com- 
plaint, the  court  will  strike  it  out  on 
motion  ;  but  it  is  not  cause  for  demurrer. 
Sammons  v.  Newman,  27  Ind.  508. 

In  determining  the  sufficiency  of  a 
petition,  the  averments  contained  in  it 
can  alone  be  considered  ;  and,  where  the 
cause  of  action  is  founded  upon  a  written 
instrument,  of  which  a  copy  is  filed  witli 
the  ])etiti()n,  the  instrument  filed  as  an 
exhibit  constitutes  no  part  of  the  petition. 
Bowling  V.  McFarland,  38  Mis.  465. 

When  a  pleading  is  founded  on  a  writ- 
ten instrument,  the  original  or  a  copy 
must  be  filed  with  it.  Nill  v.  Brooks,  21 
Ind.  178  ;  Reveal  v.  Conner,  21  Ind.  289; 
Peoria,  &c.  Co.  v.  Walser,  22  Ind.  73. 

A  declaration  is  demurrable  under 
(Mass.)  Gen.  Sts  c.  129,  §!5  2,  11,  12,  as 
containing  superfluous,  impertinent,  and 
scandalous  allegations,  which,  in  setting 
forth  that  the  defendant,  while  arguing 
as  a  counsellor-at-law  a  case  to  the  jury 
in  which  the  jilaintittwas  a  party,  imputed 
insanity  to  tlie  i)laintiff',  states  in  detail 
numerous  occupations  of  the  plaintiff, 
with  an  advertisement  annexed  of  his 
orations  and  discourses  ;  the  occupation 
of  the  defendant ;  the  political  creed  of 
both  parties  ;  and  the  fact  that  in  several 
public  orations  the  i)laintitt"  lias  denounced 
the  creed  of  the  political  party  to  which 
the  defendant  belongs  as  traitorous,  and 


thereby  made  that  party  enemies  of  the 
plaintifiT.  "Joannes"  v.  Burt,  6  Allen, 
236. 

The  rule,  that  mere  evidence  is  not  to 
be  inserted  in  the  iileadings,  is  illustrated 
hy  a  late  case  in  Pennsylvania  :  — 

Divorce.  Exceptions  to  defendant's 
answer. 

Opinion  by  Peirce,  J. 

This  is  a  libel  for  divorce  from  the 
bonds  of  matrimony  on  the  ground  of  de- 
sertion. The  libellant,  instead  of  setting 
forth  the  desertion  in  the  brief  form  usual 
in  our  practice,  has,  after  the  manner  of 
the  answer  in  Butler  v.  Butler,  1  Parsons, 
329,  given  a  narrative  of  the  matrimo- 
nial discords  and  grievances,  including 
the  innnediate  facts  connected  with, the 
alleged  desertion,  and  concludes  in  the 
usual  form,  averring  tlie  desertion. 

To  this,  the  respondent  put  in  an  an- 
swer denying  certain  averments  in  the 
libel,  and  setting  forth  her  story  of  the 
matrimonial  difficulties,  and  wholly  deny- 
ing the  desertion. 

To  this  answer  the  libellant  has  filed 
exceptions,  alleging  tliat  parts  of  the  an- 
swer, which  he  specifies,  are  not  respon- 
sive to  the  libel.  It  was  wholly  unneces- 
sary for  either  party  to  set  forth  the 
history  of  their  difficulties.  The  question 
in  controversy  between  them  is  the 
alleged  desertion.  This  is  sufficiently 
averred  on  the  one  side,  and  denied  on  the 
other.  This  makes  tlie  issue  between 
them  ;  and  the  narrative  of  grievances 
outside  of  the  main  averment,  which  is 
denied,  is,  as  was  said  in  Butler  v.  Butler, 
where  there  was  a  similar  attempt  to 
spread  upon  the  record  a  history  of  the 
matrimonial  disconls,  pure  surplusage. 
—  Moore  v.  Moore  (Leg.  Intell.). 


'234 


PLEADING. 


[book   III. 


tiff  is  not  at  liberty  to  make  out  his  case,  by  giving  in  evidence 
facts  which  he  has  not  stated  in  his  complaint.^  (a) 

§  4.  It  is  the  general  rule,  that,  where  a  right  exists  only  hy 


1  Bristol  V.  Rensselaer,  &c.,  9  Barb.  158. 


(it)  Where  the  grounds  of  a  defence  may 
be  clearly  understood  by  the  answer,  and 
the  parties  try  the  question  on  which  their 
rights  depend,  objections  to  the  answer 
on  account  of  a  defective  statement  of 
facts  will  be  disregarded  on  appeal. 
Cytlie  V.  La  Fontain,  51  Barb.  186.  The 
objection,  that  a  complaint  does  not  state 
facts  sutRcient  to  constitute  a  cause  of 
action  is  available  at  any  stage  of  the 
proceedhigs,  and  on  a  trial  before  a 
referee  a  motion  to  dismiss  the  action  for 
such  cause  is  proper.  Coffin  v.  Reynolds, 
37  N.  Y.  640. 

In  an  action  to  try  title  to  a  public 
office,  it  is  sufficient  if  the  complaint 
alleges  that  the  relator,  at  the  general 
election,  held  on,  &e.,  in  the  several 
towns  and  election  districts  of  a  certain 
named  county,  "  was  duly  elected  and 
chosen  by  the  legal  and  qualified  voters 
of  said  county."  The  whole  number  of 
votes,  with  the  number  for  each  candidate, 
need  not  be  stated.  State  v.  Brunner,  20 
Wis.  62. 

Matters  of  evidence  will  upon  motion  be 
stricken  out  as  irrelevant.  Bowen  v.  Au- 
brey, 22  Cal.  566. 

A  plea,  tendering  no  issue  of  fact,  but 
asserting  a  legal  proposition,  is  bad.  Ed- 
wards V.  State,  22  Ark.  303. 

Thus  a  denial  that  an  action  has  ac- 
crued to  the  ]>laintiff.  Schaetzel  v.  Ger- 
mantown,  22  Wis.  412. 

And,  on  tlie  other  hand,  when  pleadings 
contain  a  fair  issue  of  fact,  the  mere  fail- 
ure to  deny  legal  conclusions  should  not 
prejudice  the  defendant.  Hoopes  v. 
Meyer,  1  Nev.  433. 

And  a  conclusion  of  law,  not  justified 
by  the  facts  stated,  is  irrelevant  and  nu- 
gatory.    Griggs  V.  St.  Paul,  9  Min.  246. 

In  an  answer,  setting  up  title  or  right 
of  possession  to  land,  under  a  sale  for 
taxes,  it  is  not  enough  to  allege  that  the 
property  was  duly  sold  for  non-payment 
of  a  tax,  duly  imposed,  according  to  the 
statute.  It  is  essential  to  state  facts, 
showing  that  a  tax  was  duly  imposed  on 
the  property,  for  non-payment  of  which 
the  authorities  might  lawfully  sell  it,  and 
that  the  proof  of  non-payment,  required 
by  the  statute  to  authorize  a  sale,  liad 
been  made.  So  notwithstanding  §  161  of 
the  (N.  Y.)  Code  of  Procedure,  wliich  au- 
thorizes pleading  a  judgment  or  other 
determination    of   a   court    or   officer  of 


special  jurisdiction,  by  stating  that  it  was 
duly  given  or  made,  without  stating  the 
facts  conferring  jurisdiction.  If  a  tax 
were  witliin  this  provision,  the  answer 
should  designate  by  whom  the  tax  was 
imposed.     Carter  v.  Koezley,  9  Bosw.  583. 

In  an  action  to  establish  title  under  a 
tax  deed,  an  answer,  averring  that  the 
lands  are  not  liable  to  taxation,  without 
stating  any  of  the  grounds  of  exemption, 
is  bad,  on  demurrer.  Johnston  v.  Osh- 
kosh,  21  Wis.  184. 

In  an  action  to  recover  back  illegal 
taxes,  it  is  not  sufficient  to  aver  that  the 
valuation  of  the  property  is  "unjust,  dis- 
proportioned,  and  unequal,"  without  stat- 
ing specifically  wherein  it  is  so.  Guy  v. 
Washburn,  23  Cal.  111. 

In  an  action  to  recover  goods  obtained 
by  duress,  under  an  arrest  on  mesne  proc- 
ess, alleged  to  have  been  invalid,  the 
complaint  must  set  forth  the  facts  relied 
on  to  prove  its  invalidity.  Taylor  v. 
Blake,  11  Minn.  255. 

In  an  action  to  recover  money  paid 
under  duress  of  person  or  goods,  the  com- 
plaint must  state,  not  a  mere  conclusion 
of  law,  that  the  payment  was  compulsory, 
and  not  voluntary,  but  tiie  facts  showing 
that  the  payment  was  compelled  by 
duress.  Commercial  v.  Rochester,  41 
Barb.  341. 

A  petition,  in  a  suit  against  a  judge  of 
an  election  for  wrongfully  refusing  the 
plaintiff's  vote,  must  aver  the  facts  on 
which  the  right  to  vote  depends.  Curry 
V.  Cabliss,  37  Mis.  330. 

An  answer,  which  avers  that  the  de- 
fendant is  informed  and  believes,  that  the 
plaintiff  has  been,  and  now  is,  en- 
gaged in  inciting,  aiding,  and  assisting 
in  the  rebellion  of  the  so-called  Confed- 
erate States,  against  the  United  States, 
and  the  constitution  and  laws  thereof, 
and  has  been,  and  now  is,  giving  aid  and 
comfort  to  the  so-called  Confederate 
States,  is  defective  and  demurrable,  for  not 
stating  more  specifically  the  particular 
acts  of  rebellion  which  the  plaintiff  has 
committed.  Meni  v.  Rathbone,  21  Ind. 
454. 

An  answer,  in  an  action  to  enforce  a 
vendor's  lien,  wiiich  sets  up  a  liomestead 
exemption,  must  state  facts,  from  Avhich 
the  court  can  determine  \vhether  the 
homestead  existed.  Pratt  v.  Delavan,  17 
Iowa,  307. 


CH.  I.] 


GENERAL  RULES  OF  PLEADING. 


235 


statute,  all  the  facts  necessary  under  the  statute  must  be  set  out.^ 
In  an  action  for  breach  of  duty  imposed  by  statute,  it  is  necessary 
to  allege  tiie  facts  upon  which  the  duty  arises ;  and  a  general 
allegation  of  duty  is  insufficient.^  (a)     So  where  the  defence  to  a 

1  Oillis  V.  Black,  G  Clarke  (Towa),  439;  'i  Mctcalf  y.  Iletherington,  32  Eng.  L. 

Honiiiker  r.  Contokonk,  &c.,  U  Fost.  146;     &  Eq.  599. 
Smith  V.  Woodman,  8  ib.  b'lO. 


(a)  The  case  here  referred  to  (32  Eng. 
L.  &  lOq.  599)  contains  an  elaborate  state- 
ment of  the  law,  and  review  of  other 
cases,  relating  to  the  averment  of  fads  as 
one  of  the  requirements  in  pleading.  The 
court  remark  :  "  The  count  is  clearly  bad 
for  not  stating  the  facts  that  they  had 
funds  which  they  were  bound,  at  least 
priiiid  Jiirif,  so  to  apply.  The  words 
'  negligently  and  improperly,  and  con- 
trary to  their  duty,'  .  .  .  caimot  put  the 
plaintiff's  case  in  a  more  favorable  posi- 
tion than  if  the  count  had  stated  that  it 
was  .  .  .  the  duty  of  the  trustees  to  have 
prevented  coals  and  rubbish  accumulating 
in  the  harbor.  ...  As  that  duty  was  not 
imposed  by  the  statute,  except  in  the 
event  of  their  having  funds  which  they 
were  bound  so  to  apply,  the  rules  of 
special  jjleading  require  that  the  fact 
should  be  stated.  .  .  .  An  averment  .  .  . 
that  it  was  the  defendant's  duty  to  do  cer- 
tain things,  being  mere  matter  of  law,  will 
not  supply  the  want  of  these  allegations 
of  matter  of  fact,  from  which  the  court 
would  infer  the  law  to  be  as  stated  ;  such 
allegation  (of  duty)  is  useless  where  the 
declaration  is  insutticient,  and  superliuous 
where  it  is  sufficient."  In  reference  to 
the  cases  which  have  departed  from  this 
rule,  the  learned  judge  adds  :  "  These  are 
all  cases  of  a  compendious  statement  of  a 
right  where  the  plaintiff's  action  is 
founded  on  the  possession  of  that  right, 
and  is  for  the  violation  of  it,  and  posses- 
sion of  that  right  is  jirimd  fticie  sufficient ; 
or  they  are  compendious  statements  of  a 
duty  arising  from  prescription  or  custom. 
.  .  .  Thus  it  is  sufficient  for  the  plaintiff 
to  declare,  on  his  possession  of  a  right  of 
way  or  a  right  of  common  or  other  ease- 
ment, by  describing  them  and  claiming 
them  by  reason  of  his  possession  of  land. 
...  It  is  imnecessary  ...  to  describe 
whether  it  arises  from  grant  or  prescrip- 
tion. .  .  .  There  is  another  class  of  cases 
in  which  an  obligation  is  cast  on  the  de- 
fendant, as  to  repair  a  way  to  a  close  of 
the  plaintiff'  over  the  defendant's  land,  to 
repair  fences  against  the  plaintiff"s  land, 
or  to  repair  a  wall  adjoining  the  ])laintiff"'s 
house.  In  those  cases,  it  is  enough  to 
state,  in  a  general  way,  the  defendant's 


obligation  l)y  reason  of  the  possession  of 
his  land  or  wall,  or  an  equivalent  aver- 
ment." Per  I'arke,  B.,  32  Eng.  L.  &  Eq. 
600.  vSee  Brown  v.  Mallett,  5  Com.  B. 
599;  Chadwick  ?•.  Trower,  G  Bing.  N.  1  ; 
Priestly  v.  Fowler,  3  M.  &  W.  1 ;  Sey- 
mour V.  iMaddox,  19  Law  J.  Hep.  (N.  IS-.) 
Qu.  B.  525  ;  2  Wms.  Saun.  113  a.  b. ;  the 
Queen  v.  Bucknall,  2  Ld.  Kay.  804. 

In  another  recent  case,  the  subject  of 
pleading  in  actions  founded  upon  statute 
is  thus  spoken  of:  "It  has  always  been 
customary,  and  was  formerly  deemed 
necessary,  in  an  action  founded  upon  a 
statute,  to  invoke  it  si)ecially,  in  the  dec- 
laration. It  is  well  settled,  however, 
that  the  courts  are  bound  to  take  notice 
of  public  statutes  without  their  being 
sjyecified  in  the  pleading ;  and  that  it  is 
only  necessary  to  state  facts  which  bring 
the  case  within  the  act. .  .  .  The  Code  abol- 
ishes the  pre-existing  forms  of  pleading 
(§  140),  and,  so  far  as  relates  to  the  com- 
plaint, requires  only  a  plain  and  concise 
statement  of  the  facts  constituting  a  cause 
of  action.  The  existence  of  a  legal  prin- 
ciple, whether  of  common  law  or  founded 
upon  a  statute,  cannot  be  deemed  one  of 
the  essential  facts  which  it  is  necessary  to 
state.  It  was  formerly  held,  too,  that,  in 
an  action  founded  upon  a  recent  statute, 
it  was  necessary  to  aver  that  the  cause 
arose  after  the  passage  of  the  act.  It 
seems  to  me  that  all  that  can  be  reciuisite 
...  is  to  state  ...  a  time  subsequent  to 
the  adoption  of  the  statutory  provision 
...  If  it  should  apjiear  .  .  .  that  the 
transaction  occurred  at  too  early  a  date, 
that  would  be  a  ground  for  a  nonsuit." 
Per  S.  B.  Strong,  J.,  Brown  v.  Harmon, 
21  Barb.  510. 

In  a  statutory  suit  by  the  representa- 
tive of  one  killed  by  the  wrongful  act  or 
default  of  another,  required  to  be  com- 
menced within  two  years  after  such 
death ;  a  declaration  which  alleges  the 
day  of  the  death,  although  that  was  not 
within  two  years,  if  within  two  years,  is 
sufficient  after  verdict.  Hill  i'.  New 
Haven,  37  Vt.  501. 

A  plea  may  follow  the  language  of  the 
statute.     Gunter  v.  Dale,  44  Ala.  639. 


236 


PLEADING. 


[book   III. 


note  is,  that  it  was  made  in  consideration  of  money  lent  to  be 
wagered  upon  tlie  result  of  an  election;  the  answer  must  allege, 
conformably  to  the  statutory  provision,  that  the  money  was  lent 
at  the  time  of  such  wager.'  (a) 

§  5.  This  rule,  however,  is  not  always  rigidly  enforced.  Thus, 
in  an  action  against  a  bank  for  the  statutory  penalty  for  delaying 
payment  of  its  bills,  a  demurrer  to  the  declaration  will  not  be  sus- 
tained, because  copies  of  the  bills  are  not  set  forth  ;  the  statute 
merely  providing,  that  writings  or  their  "  legal  effect "  shall  be  set 
forth,  and  the  demurrer  not  objecling  except  as  above  stated.^ 
So  in  an  action  upon  Mass.  Rev.  Sts.  c.  58,  §  13,  to  recover 
double  damages  for  an  injury  by  a  dog,  judgment  will  not  be  ar- 
rested, because  the  declaration  does  not  set  forth  that  the  acts  were 
done  co7itra  fo7^mam  statuti  ;  the  act  being  remedial,  not  penal.^ 
So  a  declaration  alleged,  that  the  defendants  erected  a  bridge 
across  a  canal,  part  of  the  bed  of  which  belonged  to  the  plaintiff, 
and  also  certain  walls  adjoining,  and  caused  the  bridge  and  walls 
to  be  so  constructed  as  to  project  over  parts  of  the  said  land  of  the 
plaintiff.     Plea,  that  the  several  acts,  &c.,  complained  of  were 


1  Ensley  v.  Patterson,  19  Ind.  95.  »  Mitchell  v.  Clapp,  12  Cush.  278. 

-  Suffolk,  &c.  V.  Lowell,  &c.,  8  Allen,     Com.  v.  Thompson,  2  Allen,  507. 


See 


355. 

(a)  A  petition,  under  the  statute  of  Mis- 
souri concerning  railroads,  for  damages 
for  stock  killed  by  a  railroad,  which  fails 
to  show  a  cause  of  action  under  the  stat- 
ute, is  good,  if  it  shows  a  cause  of  action 
at  common  law  ;  and  irrelevant  allega- 
tions may  be  stricken  out.  Garner  v. 
Hannibal,  34  Mis.  235.  Where  a  statute 
has  changed  a  common-law  form  of  action, 
a  petition  containing  a  statement  of  facts, 
which  shows  a  right  to  recover,  will  be 
sufficient,  without  bringing  it  within  any 
form  of  action  of  the  common  law.  Ahern 
V.  Collins,  39  Mis.  145. 

Public  statutes  need  not  be  recited,  or 
even  referred  to,  in  a  pleading.  It  is 
sufficient  if  the  case  is  brought  within  the 
statute.  That  a  complaint,  by  an  evident 
clerical  error,  refers  to  the  wrong  section 
of  an  act,  is  wholly  immaterial.  McHarg 
V.  Eastman,  7  Rob.  (N.  Y.)  137. 

Where  a  duty  is  imposed  by  a  public 
statute,  a  declaration  need  only  allege  the 
facts  which  bring  the  case  within  it. 
Logansport  v.  Wright,  25  Ind.  512. 

In  an  action  against  a  railroad  for  forfeit- 
ure for  charging  more  than  the  legal  fare, 
the  complaint  need  not  set  out  the  vari- 
ous enactments  which  show  that  the  com- 


pany is  restricted  to  a  certain  fare  ;  but  only 
that  the  defendant  had  been  duly  or- 
ganized, was  entitled  to  demand  and 
receive  a  certain  fare,  and  had  demanded 
and  received  a  higher  rate.  NelUs  v.  New 
York,  30  N.  Y.  505. 

A  complaint  against  a  railroad  is  suffi- 
cient, "  that  said  railroad  was  not,  at  the 
time  and  place  aforesaid,  fenced  in  by 
said  defendant  in  manner  and  form  as  in 
the  statute  provided ; "  and  under  such 
averment  proof  may  be  made  that  the 
road  had  not  been  duly  fenced  in  at  all, 
or,  if  it  had,  that  the  fence  had  not  been 
properly  maintained.  Toledo  v.  Fowler, 
22  Ind.  316. 

In  general,  in  pleading  under  a  statute, 
it  is  sufficient  to  use  the  language  of  the 
statute  ;  and  though  there  are  exceptions, 
requiring  specific  facts  to  be  stated,  where 
general  language  is  used  in  the  statute, 
yet  it  is  not  necessary,  in  a  civil  proceed- 
ing, to  add  to  the  language  of  the  statute 
other  general  language,  which  does  not 
make  tlie  pleading  any  more  specific,  be- 
cause such  other  language  was  technically 
required  in  a  common-law  indictment. 
Jarvis  v.  Hamilton,  16  Wis.  574. 


CH.  I.]  GENERAL  RULES  OF  PLEADING.  237 

lawfully  done  by  the  defendants  under  and  by  virtue  of  powers 
given  to  them  by  a  certain  act  of  parliament  (setting  out  the  year 
and  title).  Held  good,  without  alleging  the  particular  facts  upon 
which  the  defendants  relied  as  bringing  them  within  the  statute.^ 
And,  in  pleading,  the  language  of  the  statute  itself  is  held  suffi- 
cient.^ 

§  6.  A  count  in  debt,  for  the  penalty  provided  by  statute  for 
cutting  trees,  may  be  joined  with  debt  for  the  value  of  the  trees 
carried  away.  But  trespass  cannot  be  joined  Avith  debt  for  the 
penalty.'^ 

§  6  a.  A  plea,  justifying  flowage  under  an  act  which  authorized 
the  erection  of  a  dam,  must  allege  that  compensation  was  made 
under  the  act.* 

§  7.  In  reference  to  statutory  liabilities,  the  distinction  is  well 
established,  that,  where  any  qualification  or  exception  is  stated  in 
the  enacting  clause,  a  declaration  or  plea,  founded  on  it,  must 
allege  the  facts  necessary  to  bring  the  case  within  the  qualifica- 
tion, or  to  exclude  it  from  the  exception.^  But  an  exception  in  a 
subsequent  clause  (a)  is  matter  of  defence,  and  the  other  party 
must  show  it  to  exempt  himself  from  the  penalty.*^  (&)     Thus  the 

1  Beaver  v.  Manchester,  8  Ell.  &  B.  30  ;  R.  R.  Co.  v.  Hendricks',  2(3  Ind.  228 ; 
44.  Toledo,  &c.  R.  R.  Co.  v.  Bevin,  ib.  443; 

2  Jarvis  v.  Hamilton,  16  Wis.  574.  Great  v.  Hanks,  36  111.  281  ;  Board  of 
8  Elder  y.  ililzheim,  3.5  Miss.  23L  Education  v.  Grcenebaum,  39  111.  609; 
*  Tliien  v.  Voegtlander,  3  Wis.  4G1.         McGlone  v.  Prosser,  21  Wis.  273. 

5  Clough  r.  Shepherd,  11'  Fost.  4'JO;  «  Chicago,  &c.  v.  Carter,  20  111.  390. 

20  111.  390 ;  Faribault  v.  Hulett,  10  Minn. 

(a)  Whether  a  proviso  or  another  sec-  But  with  reference  to  a.  general  custom  it 

tion.     Lynch  v.  People,  16  Mich.  47li.  is  laid  down,  that,  in  an  action  aganist  a 

(h)  It  is  necessary,  under  the  New  York  connnon  carrier  or  innkeeper,  for  the  loss 

code  of  i)ractice,  that  a  complaint,  founded  of  goods,  &c.,  whicli  is  a  liability  founded 

wholly  upon  a  statute,  should   contain  a  on  the    common    law  or  custom    of  the 

positive  allegation  of  all  tlie  acts,  and  also  realm  ;    it  is  not  only  unnecessary,  but 

of  the  (lualitications,  if  any,  prescribed  by  improper,  to  recite  such  custom,  because 

tiie  statute  ;  and  when  the  action  is  ui)on  it  tends  to  confound  tlie  distinction   be- 

a  statute,  granting  a  remedy  in  damages  tween  special  customs,  whicli  ought  to  be 

unknown  to  the  common  law,  for  deatli  pleaded,  and  the  general  customs  of  the 

caused  by  wrongful  act,  neglect,  or  de-  realm,  of  which  the  courts  are  bound  to 

fault,  a  merely  inferential  cliarge  of  negli-  take  notice,  without   pleading.     1    Chit, 

gence  on  the  part  of  defendants  is  not  Pi.  220. 
sufficient.     It  is  not  necessary  that   the 

complaint  should  allude  directly   to   the  Questions    of   pleading,  in  connection 

statute,  but  it  must  state  a  time  subse-  witli  express  statutes,  have  often  arisen, 

quent  to  the  enactment  of,  and  all  the  in  actions  against  railroad   corpor.ations, 

liicts  which  are  requisite  to  bring  the  case  or  other  parties,  for  causing  the  death  of 

within,  the  statute.     Brown  v.  Harmon,  human  beings,  or  injury  duno  to  animals 

21  Barb.  508.  upon  their  roads. 

A  declaration  in  case  alleged,  that  a 

Somewhat  analogous  to  a  statute,  is  a    railroad  engine,  by  the  negligence  of  the 

custom,  variant  from  the  common-law  rule,     servants  of  the  defendants  in  managing 


238  PLEADING.  [book   III. 

owner  of  animals  killed  or  injured  by  a  railroad,  in  order  to 
recover  against  the  company,  must,  by  proper  averments  in  his 
declaration,  not  only  show  that  the  company  were  required  to 
fence  their  track,  and  had  failed  to  do  so,  but  must  negative  the 
various  exceptions  in  the  enacting  clause  of  the  statute,  and  aver 
that  the  animals  were  not  injured  at  a  point  on  the  road  within 
these  exceptions ;  and  also  that  the  road  had  been  opened  for  use 
six  months  before  the  occurrence  of  the  accident.^ 

§  8.  It  is  a  well-settled  principle,  that  an  action  can  be  main- 
tained only  for  damages  naturally,  immediately,  or  directly  re- 
sulting from  the  act  or  neglect  complained  of  (See  Hilliard 
on  Torts,  Chap.  III.)  And  to  this  rule  the  pleadings  are  re- 
quired to  conform.  Thus  a  declaration  alleged,  that  the  plain- 
tiff, defendant,  and  C  had  entered  into  a  joint  speculation  in 
railway  shares ;  that  C  had  advanced  £6000 ;  £2000  on  his 
own  behalf,  £2000  as  a  loan  to  the  plaintiff,  and  £2000  on  behalf 
of  the  defendant;  that  C  was  desirous  of  retiring  from  the  ad- 
venture, and  the  defendant  offered  to  take  upon  himself  the  whole 
of  the  adventure  and  debt  of  £6000,  provided  the  plaintiff 
would  abandon  his  share  to  the  defendant,  and  C  would  accept 
the  defendant  as  his  debtor  in  the  place  of  the  plaintiff  for  the 
£2000  ;  that  the  plaintiff  did  thus  abandon  his  share,  and  the  de- 
fendant agreed  to  take  upon  himself  the  whole  and  become  debtor 

1  Galena,  &c.  v.  Sumner,  24  111.  631 ;  Ohio,  &c.  v.  Brown,  23  111.  94. 

the  same,  was  run  upon    the    intestate,  injured  the  deceased,  wliereby  she  shortly 

whereby  he  loas  killed.     Held,  a  sufficient  afterwards  died.     No  negligence  was  al- 

allegation  of  the  injury.      The  decision  leged,  or  that  the  death  was  the  necessary 

rests  upon  the  grounds,  that  the  statutory  result  of  the  illegal  act  of  the  defendant, 

law  has  changed  the  common-law  rule,  by  Held,  bad.     Roe  v.  Lalonette,  9  Ir.  Com. 

which  an  action  cannot  be  maintained  for  Law  Kep.  9;  C.  P. 

an    act    causing    deatli ;     and    that   the  In  an  action  against  a  railroad  corpora- 

declai'ation    did    not    imply  the    party's  tion  under  the  Illinois  statute,  "  for  caus- 

instantaneous    death,    although,  even    in  ing  death  by   wrongful    act,  neglect,  or 

that    case,    under    the    language    of   the  default,"  a  declaration,  which  does   not 

statute,  differing  from  that  in  Massachu-  aver  that  the  railroad  was  used  in  the 

setts,  the  action  would  lie.     Murphy  v.  State  and  county  in  which  the  action  was 

New  York,  &c.,  30  Conn.  184.  brought,  would  be  defective  on  demurrer, 

In  an  action  under  the  9  &  10  Vict.  c.  but  is  good  after  verdict.    Before  recovery, 

93,  by  the  personal  representative  of  one  under  this  statute,  it  must  be  averred  and 

who  had  been  accidentally  killed  by  the  proved,    that  the  deceased  left  a  widow 

instrumentality    of    the    defendant,    the  or  next  of  kin,  to  whom  tlie  damages  can 

declaration  alleged  that  the  defendant's  be    distributed.     There  may  be  persons 

horse,  while  being  driven  and  trained  by  isolated  or   unknown,    who   do   not   and 

him,  in  a  public  place  or  thorouglifare  in  would   not  afford  any  support    to    their 

the  city  of  Dublin,  to  the  annoyance  of  relatives;  in  the  case  of  the  death  of  such, 

great  numbers  of  passengers,  and,  among  there  would  not  be  any  next  of  kin  sus- 

others,  of  the  deceased,  contrary  to  the  taining  a  pecuniary  loss.     The  damage  is 

provisions  of  the  Dublin  Police  Act   (5  exclusively  for  a  pecuniary  loss,  not  as  a 

Vict.  sess.  2,  c.  24,  §  14),  ran  against  and  solace.     C.  &  R.  &c.  v.  Morris,  6  111.  400. 


CE.  I.]  GENERAL  RULES  OF  PLEADING.  239 

to  C  for  the  whole  £6000,  and  C,  on  the  faith  and  in  the  behef 
that  such  an  arrangement  was  made,  consented  to  accei)t  the  de- 
fendant as  such  debtor  in  the  place  of  the  plaintiff.  Nevertheless, 
the  defendant,  knowing  that  he  alone  was  capable  of  jjroving  that 
the  plaintiff  had  assented  to  the  said  arrangement,  fraudulently, 
falsely,  and  maliciously,  and  before  the  Evidence  Act,  14  and  15 
Vict.  c.  99,  and  in  order  to  induce  C  to  believe  that  the  advent- 
ure had  never  been  put  an  end  to,  and  to  induce  C  to  sue  the 
plaintiff  for  the  £2000,  and  to  deter  the  plaintiff  from  calling  the 
defendant  as  a  witness,  and  to  destroy  his  credit  as  a  witness,  if  so 
called,  wrote  and  sent  to  C  a  letter,  purporting  to  be  addressed 
to  the  plaintiff,  but  directed  to  C,  wherein  he  fraudulently  and 
falsely  pretended  to  expostulate  with  the  plaintiff,  and  asserted 
that  the  plaintiff  had  positively  refused  to  concur  in  the  said 
arrangement.  By  means  whereof  C  was  induced  to,  and  did 
believe,  that  the  plaintiff  had  never  agreed  to  retire  from  the  said 
adventure,  and  acting  on  such  belief,  C  brought  an  action  against 
the  plaintiff  to  recover  the  £2000;  that  the  said  action  was 
referred  to  an  arbitrator,  upon  the  terms  that  neither  the  plain- 
tiff nor  the  defendant  should  be  examined ;  and  C  recovered 
against  the  plaintiff  £2486,  which  he  was  compelled  to  pay. 
Held,  the  declaration  disclosed  no  cause  of  action,  since  it  did  not 
appear  that  the  damage  to  the  plaintiff  was  a  natural  result  of  the 
wrongful  act  of  the  defendant.^ 

§  8  a.  Conformably  with  the  rule,  that  a  party  himself  in  fault 
cannot  recover  of  another,  though  also  in  fault ;  (a)  it  is  held,  that, 
in  an  action  for  injury  to  the  person  by  negligence,  the  complaint 
must  allege  or  show  by  facts  that  the  plaintiff  was  not  in  fault.^ 
Thus  a  complaint  for  an  injury  suffered  by  a  passenger  from  the 
negligence  of  a  railroad  company  should  allege  tliat  the  plaintiff 
did  not  contribute  to  the  injury .^  So  a  declaration  in  case  stated 
that  the  defendant,  knowing  that  a  certain  house  was  in  such  a 
ruinous  and  dangerous  state  as  to  be  dangerous  to  enter,  occupy, 
or  dwell  in,  and  knowing  that  the  state  of  the  house  was  unknown 
to  the  plaintiff,  by  agreement  in  writing  demised  the  said  house 
to  the    plaintiff,  and  the  plaintiff  agreed   to   take  the  same  at  a 

1  Collins  !'.  Cave,  4  Hurl.  &  Nor.  225.  3  Jeffcrsonville  v.  Hendricks',  26  Ind. 

-  Evansville,  &c.   v.  Dexter,  24    Ind.     228;  Toledo  u.  13evin,  ib.  443. 
411.     See  Wright  v.  Indianapolis,  &c.,  18 
Ind.  1G8. 

(«)  See  Billiard  on  Torts,  c.  4. 


240  PLEADING.  [book  HI. 

certain  rent,  t!ie  plaintiff  having  previously  proposed  to  take  the 
house  for  the  purpose  of  immediately  occupying  and  dwelling  in 
the  same ;  that  the  plaintiff  commenced  dwelling  in  the  house 
without  notice  of  its  state,  and  so  continued  to  the  knowledge  of 
the  defendant ;  and  that  the  defendant  neglected  his  duty  in  not 
giving  the  plaintiff  notice  that  the  house  was  in  the  said  state 
before  entering  into  the  said  agreement,  and  before  the  plaintiff 
commenced  occupying ;  and  that,  shortly  after  the  plaintiff  com- 
mencing occupying,  the  house  fell  down ;  alleging  special  dam- 
age. Held  (on  demurrer  to  the  plea),  that  this  declaration  was 
bad,  there  being  nothing  to  show  that  the  plaintiff  was  not  to 
put  the  house  into  repair  before  he  commenced  occupying,  and 
it  not  being  alleged  that  he  was  induced  by  his  belief  of  the 
soundness  of  the  house  to  enter  into  the  agreement,  or  that  any 
misrepresentation  was  made  by  the  defendant  to  the  plaintiff  as 
to  the  condition  of  the  house. ^  So,  in  case  of  death  occurring 
upon  a  railroad,  it  is  held  not  sufficient  to  allege  that  the  plain- 
tiff '*  was  at  the  time  lawfully  on  the  track."  ^  A  declaration  in 
case  against  a  corporation,  for  injuries  sustained,  shouM  allege 
that  the  defendant  was  guilty  of  negligence,  and  that  the  plain- 
tiff exercised  proper  care  ;  and  the  proof  should  support  the 
allegations.^  But,  in  Illinois,  a  declaration  against  a  railroad,  for 
killing  cattle,  need  not  negative  the  possibility  that  the  animals 
may  have  been  killed  at  a  farm-crossing.  If  the  road  is  not  prop- 
erly fenced  at  such  crossing,  the  company  will  be  liable  ;  and,  if 
it  were  properly  fenced,  that  is  a  matter  of  defence."*  So  the 
complaint,  in  an  action  against  a  railroad  for  injury  to  a  passen- 
ger, need  only  allege  that  the  injury  happened  through  the  neg- 
ligence of  the  defendant,  not  that  the  plaintiff  was  free  from 
negligence.^  So  in  an  action  for  injuries  by  being  run  over  by 
the  horse  of  the  defendant,  through  his  carelessness,  an  averment 
of  ordinary  care  on  the  part  of  the  plaintiff  is  unnecessary.*^  So 
a  complaint  alleged,  that  the  plaintiff  was  the  keeper  of  a  livery 
stable,  and  as  such  it  was  his  business  to  keep  horses  for  hire, 
&c. ;  that  he  kept  in  his  stable  two  valuable  horses  of  his  own, 


1  Keates  v.  Cadogan,  2  Eng.  L.  &  Eq.  *  Great  Western,  &c.  v.  Helm,  27  111. 
318.  198. 

2  The  Indianapolis,  &c.  v.  Keely,  23         5  Potter  v.  Chicago,  20  Wis.  533. 
Ind.  133.  6  Cox  v.  Brackett,  41  111.  222. 

3  C.  B.  &  Q.  K.  R.  Co.  V.  Hazzard,  6 
lU.  373. 


—tm.   I.]  GENERAL  RULES  OP  PLEADING.  241 

&c.  ;  that  the  defendant,  knowing  these  facts,  brought  to  the 
plaintiff  a  horse  which  had  the  distemper,  representing  that  the 
horse  had  recovered  and  could  not  communicate  the  disease ; 
that  the  plaintiff,  being  ignorant  of  the  condition  of  the  horse, 
received  him  into  his  stable,  relying  upon  the  representations ; 
that  the  defendant  knew  that  the  disease  was  then  in  the  conta,- 
gious  stage  ;  and  that  the  plaintiff's  two  horses  took  the  disease. 
Held,  the  complaint  was  not  bad,  for  not  alleging  that  the  injury 
occurred  without  fault  or  negligence  on  the  part  of  the  plaintiff.^ 
And,  in  an  action  for  negligence,  a  declaration,  not  averring  that 
the  plaintiff  was  without  fault,  or  that  he  exercised  proper  care 
to  avoid  the  injury,  is  cured  by  a  verdict.^  So,  in  the  analogous 
case  of  concurrent  causes  of  damage,  a  petition  alleged  the  flood, 
ing  of  a  cellar  by  obstructing  the  street,  and  the  answer  was  a 
denial.  Evidence  was  offered,  without  objection,  that  the  flood- 
ing was  caused  by  the  defendant's  wrongful  opening  of  the  side- 
walk, making  a  channel  through  which  the  water  was  forced 
into  the  cellar  by  obstructions  which  others  placed  in  the  street. 
Held,  under  the  provision  of  a  statute,  that  a  material  variance 
must  be  one  which  actually  misled  the  party  to  his  prejudice, 
the  court  might  give  judgment  upon  this  evidence  for  the  plain- 
tiff; the  injury  being  caused  by  the  concurrent  acts  of  the  open- 
ing and  obstructing,  and  the  former  being  a  proximate  cause.-^ 

§  8  6,  A  late  case  in  Massachusetts  adopts  a  rule  of  pleading, 
in  reference  to  the  defence  depending  upon  the  fault  of  the  plain- 
tiff, as  favorable  perhaps  to  the  defendant  as  any  one  to  be  found 
in  the  books. 

§  8  c.  In  an  action  against  a  town  for  injury  sustained  by  rea- 
son of  a  defective  road,  the  defendants  may  rely  upon  the  fact 
that  the  accident  occurred  on  the  Lord's  day,  without  alleging  it 
in  the  answer.*  With  regard  to  the  allegations  in  the  declara- 
tion and  plea,  respectively,  the  court  remark  as  follows  :  "  The 
case  is  at  issue  solely  on  a  denial  of  the  averments  in  the  declara- 
tion. Of  these,  the  only  one  which  can  be  said  to  include  the  fact 
that  the  plaintiff  was  lawfully  on  the  highway  at  the  time  of  the 
accident  is,  that  he  was  travelling  thereon,  '  using  due  care.'  The 
term  '  due  care,'  where  the  gist  of  the  action  is  the  negligence  of 

1  Fultz  V.  Wycoflf,  25  Ind.  32L  <  Jones  v.  Andover,  10  Allen,  18.    See 

2  Illinois  V.  Simmons,  38  111.  242.  Hulet  v.  Stratton,  5  Cush.  53'J. 

3  Hoffman  v.  Gordon,  15  Ohio  St.  211. 

16 


242  PLEADING.  [book   III. 

the  defendant,  implies  that  he  has  been  guilty  of  no  violation  of 
law  in  relation  to  the  subject-matter.  The  averment  in  the  dec- 
laration ol"  the  use  of  due  care,  and  the  denial  of  it  in  the  answer, 
put  in  issue  the  legality  of  the  conduct  of  the  party.  If  the  plain- 
tiff had  not  been  engaged  in  the  doing  of  an  unlawful  act,  the  ac- 
cident would  not  have  happened,  and  the  negligence  of  the 
defendants  would  not  have  contributed  to  produce  an  injury  to  the 
plaintiff.  ....  We  have  assumed  that  the  allegation  of  the  use  of 
due  care  by  the  plaintiff  comprehends  the  fact  that  the  plaintiff 
was  then  lawfully  on  the  highway.  Such,  we  think,  is  the  reason- 
able construction  of  the  form  of  declaration  prescribed  in  the 
forms  annexed  to  the  Practice  Act,  Gen.  Sts.  c.  129 ;  otherwise, 
it  would  seem  that  a  material  fact,  which  it  was  the  duty  of  the 
plaintiff  to  prove,  was  not  included  in  the  statute  form  of  plead- 
ing. But,  if  it  were  not  so,,  it  would  not  change  the  result.  If  it 
is  not  necessary  to  aver  the  fact  in  the  declaration,  it  certainly 
cannot  be  required  of  the  defendant  to  deny  its  existence,  or 
make  any  averment  respecting  it."^ 

§  9.  In  order  to  sustain  an  action,  the  declaration  and  evidence 
must  conform,  (a)  It  is  held,  that  there  is  no  rule  which  has  been 
so  stringently  enforced,  as  the  rule  that  the  allegata  must  be  broad 
enough  to  let  in  the  proof,  and  that  no  evidence,  not  supported  by 
the  allegata,  can  sustain  a  verdict.^  And,  in  a  late  case,  it  is  re- 
marked :  "  Although  the  language  of  pleadings  under  the  Ohio 
Code  will  be  construed  according  to  its  ordinary  and  popular 
meaning,  that  meaning  must  conform  substantially  to  the  proof 
on  the  trial."  ^ 

§  10.  Thus,  although  pleadings  are  to  be  liberally  construed 
under  that  Code,  an  allegation,  that  the  defendant  obstructed 
the  road  by  erecting  a  stone  fence  across  it,  cannot  admit 
proof  that  he  erected  a  stone  fence  fifteen  rods  away  from  the 
road,  whereby  water  flowed  upon  the  road  and  obstructed  it.*  So, 

1  Per  Bigelow,  C.  J.,  10  Allen,  20.  »  Per  Swan,  C.  J.,  Hill  o.  The  Super- 

2  Denison  v.    League,    10  Tex.    399.     visor,  &c.,  10  Ohio  St.  621. 
See  Dougherty  v.  Matthews,  35  Mis.  520  ;  *  lb. 

Boiling  V.  Doneghy,  1  Duv.  220  ;  Hall  v. 
People,  21  Mich.  456. 

(a)  The  (Mis.)  Code  of  Practice  has  not  the  nature  of  the  action  —  tort  or  contract 

changed  the  rule  of  law,  that  the  allega-  —  cannot,  after  appearance,  be  taken  ad- 

tions  and  proof  must  substantially  corre-  vantage   of,    if   the   complaint   is  served 

spond.     Jones  V.  Loiiderman,  89  Mis.  287.  either  with  the  summons,  or  afterwards, 

A  complaint   should  follow    the    sum-  on  the  appearance.     Fond  du  Lac  v.  Bone- 

mons.     A  variance   between  them  as  to  steel,  22  Wis.  251. 


CH.  I.]  GENERAL  RULES  OF  PLEADING.  243 

under  a  declaration  for  damages  to  property  by  the  wrongful  and 
improper  grading  of  a  certain  avenue,  the  plaintiff  cannot  claim 
compensation  for  loss  by  the  grading  and  paving  of  other  streets. ^ 
So  where  the  charge  was  of  adultery  with  divers  persons,  whose 
names  were  unknown,  and  the  only  proof  was  of  adultery  with 
one  person,  who  was  well  known  to  the  complainant,  the  variance 
was  held  fatal.^  So,  if  the  declaration  alleges  injuries  done  by 
the  defendant's  children  and  servants,  the  plaintiff  cannot  prove 
injuries  done  by  himself  in  person ;  and  threats  are  therefore 
inadmissible  in  evidence.^  So  evidence  of  an  injury  caused  by 
the  unmanageableness  of  the  defendant's  horses,  or  his  want  of 
skill  in  managing  them,  does  not  sustain  an  action  for  wilful 
injury.'*  So  where  the  plaintiff  alleged  that  the  defendant, 
"  intending  to  injure  the  plaintiff,  carried  and  set  fire  to  the 
brush  in  the  defendant's  close  aforesaid,  which,  <fec.,  being  care- 
lessly managed  by  the  defendant,  spread,  &c.,  caught  the  wood 
in  the  plaintiff's  close,"  &c.  ;  held,  an  action  at  common  law,  and 
that  the  intent  should  be  proved  beyond  reasonable  doubt.^  So, 
under  a  declaration  for  doing  work  badly,  a  recovery  cannot  be 
had  for  the  not  doing  of  it  at  all.*^  So  evidence  that  the  plaintiff 
bought  an  article  of  one  A,  who  obtained  it  from  the  defendants, 
does  not  sustain  a  declaration,  that  the  plaintiff,  through  his  agent, 
procured  the  defendants  to  furnish  and  deliver  him  a  certain  arti- 
cle, but  they  negligently  furnished  a  different  one.'^  So" an  alle- 
gation of  a  right  to  a  public  alley  is  not  sustained  by  proof  of  a 
private  alley-way.^  So  an  allegation,  that  the  plaintiff  was  pos- 
sessed of  mines,  lands,  and  premises,  and  of  right  ought  to  have 
had  and  enjoyed,  and  still  of  right  ought  to  have  and  enjoy,  the 
water  of  a  stream  which  had  been  used  to  flow  alongside  the  said 
lands  and  premises,  is  not  supported  by  proof,  that  the  plaintiff 
was  a  lessee  of  mines  under  land  adjoining  the  stream,  with  a 
grant  from  the  surface  owner  of  the  use  of  the  water  for  colliery 
purposes.^  So  a  complaint  alleged,  that  a  registrar  in  chancery, 
whose  sureties  were  sought  to  be  charged  for  his  default,  sold 
certain   property,  under   an  order  of  a  chancellor,  and  collected 

»  Ortwine  r.  Baltimore,  10  Md.  387.  ^  Davidson  v.  Nichols,  8  Allen,  75. 

^  Mills  V.  Mills,  3  Green,  444.  8  Satchell  v.  Dorara,   4  Ohio  (N.  S.), 

3  Smith  V.  Causey,  28  Ala.  655.  542. 

*  Baird  v.  Dunninpr,  11  Wis.  fiS.  9  Insole  v.  James,  37  Eng.  L.  &  Eq. 

5  Paul  V.  Currier,  53  Maine,  526.  623. 
•»  Times,  &c.  v.  Hawke,  5  Hurl.  &  Nor. 
935. 


244  PLEADING.  [book   III. 

the  greater  portion  of  the  proceeds  ;  that  his  report  of  the  sale, 
showing  these  facts,  was  confirmed  by  the  chancellor,  and  he  was 
ordered  to  loan  out  "  the  money  in  his  hands  ; "  that  he  after- 
wards collected  and  retained,  "  as  such  registrar,"  the  balance  of 
the  proceeds  of  sale ;  and  that  he  subsequently  collected  the 
money  loaned  out,  and  failed  to  pay  over  or  account  for  it.  The 
proof  was,  that  he  failed  to  pay  over  or  account  for  the  balance 
of  the  proceeds  of  sale  collected  by  him,  after  he  had  been 
ordered  to  loan  out  the  funds  in  his  hands.  Held,  the  variance 
was  fatal.i  So  a  declaration,  that  a  party  was  "  violently  thrown 
from  a  wagon  upon  the  ground  by  reason  of  a  defect  in  the  high- 
way," is  not  supported  by  proof  that  he  voluntarily  leaped  from 
the  wagon  to  avoid  coming  in  contact  with  such  defect ;  though 
such  objection  ought  ordinarily  to  be  taken  before  the  case  is 
submitted  to  the  jury.^  (a)  So  if,  to  a  plea  of  justification  under 
a  rate-bill  and  warrant,  the  plaintiff  replies  de  injuria,  &c.,  and  no 
objection  is  taken  to  the  replication ;  the  defendant  must  prove 
every  material  allegation  in  his  plea.^  So,  in  a  suit  against  a 
justice  of  the  peace  in  Pennsylvania,  for  the  penalty  for  taking 
illegal  fees,  the  previous  notice  to  the  defendant,  prescribed  by 
law,  stated  the  penalty  to  have  been  incurred  under  "  the  twenty- 
sixth  section  of  the  Act  of  1814,  which  said  section  is  reenacted 
by  the  Act  of  1821  ;  "  but  the  declaration  was  upon  the  Act  of 
1814.  Held,  a  fatal  variance,  the  allegation  being  not  surplus- 
age, but  a  substantial  averment  that  the  party  intended  to  pro- 
ceed on  that  act."^  So,  in  an  action  for  services,  evidence  of  posi- 
tive misconduct  is  not  admissible  in  support  of  a  counter-claim, 
the  only  ground  of  which,  that  is  specially  pleaded,  is  neglect ; 
nor  in  support  of  a  denial  of  the  plaintiff's  allegation,  that  he 
had  faithfully  performed  the  services.^  So  when  the  incompetency 
and  negligence  of  an  overseer  are  put  at  issue  in  the  pleadings 
on  a  suit  for  wages,  evidence  must  be  received  to  establish  the 
fact.*^     So  where  a  petition  to  redeem   a   mortgage  alleges  an 

1  Dill  V.  Rather,  30  Ala.  57.  *  Apple  v.  Eambo,  13  Penn.  9. 

2  Lund  V.  Tyngsboro,  11  Cush.  568.  5  Stoddard  v.  Treadwell,  26  Cal.  294. 

3  Downer  v.  Woodbury,  19  Verm.  329.  ^  Webre  v.  Gaillard,  16  La.  An.  189. 

(a)  If  such  case  is  tried  and  submitted  them,  that  the  action  can  be  maintained  if 

to  the  jury  entirely  upou  the  hypothesis  the  plaintiff  voluntarily  jumped    to  the 

that   the    plaintiff  was  so  thrown  to  the  ground  through  imminent  peril ;  a  verdict 

ground,  and  afterwards,  in  answer  to  an  against  the  defendants  will  be  set  aside, 

inquiry  by  the  jury,  the  judge  instructs  11  Cush.  563. 


CH.    I.]  GENERAL    RULES    OF    PLEADING.  245 

application  for  an  account,  and  a  refusal;  the  petitioner,  admit/- 
ting-  that  an  account  was  duly  rendered,  cannot  offer  evidence 
tliat  the  mortgage  was  fraudulent,^  So  the  defendant  cannot 
introduce  evidence  of  the  illegality  of  the  contract  set  forth,  if 
there  is  nothing  in  the  declaration  or  answer  indicating  or  aver- 
ring illegality .2  So  where  a  complaint  alleges  that  the  defendant 
received  goods  as  a  common  carrier,  warehouseman,  and  forward- 
ing merchant,  to  be  kept  by  him  and  conveyed  to  a  certain  place 
and  delivered  to  the  plaintiff;  no  recovery  can  be  had  for  loss 
of  the  goods,  without  proof  of  a  contract  to  carry  them.^ 
So  where,  in  an  action  for  a  wrongful  act  to  a  building,  the 
declaration  alleged  that  the  act  was  committed  after,  but  the 
evidence  showed  it  was  before,  the  plaintiff  had  leased  his  por- 
tion of  the  building;  held,  the  plaintiff  could  not  recover.  The 
allegation  was  descriptive  of  the  plaintiff's  estate  when  the  wrong- 
ful act  was  committed,  and  was  a  material  one.* 

§  10  a.  Upon  the  subject  of  variance,  however,  the  following 
distinction  is  well  established :  "  Where  a  party  takes  upon  him- 
self to  state  in  anj'^  pleading  a  substantive  averment,  or  to  allege 
a  precise  estate,  which  he  is  not  bound  to  do,  if  they  are  material 
...  he  gives  the  other  side  an  advantage  of  traversing  them. 
As  ...  if  in  an  action  on  the  case  against  the  sheriff,  for  levying 
under  an  execution  against  the  tenant,  without  paying  the  land- 
lord a  year's  rent,  if  the  plaintiff,  though  unnecessarily,  profess  to 
set  out  the  terms  of  the  tenancy  .  .  .  and  misdescribe  them,  the 
variance  will  be  fatal.  ...  If,  however,  the  matter  ...  be 
wholly  foreign  and  impertinent  ...  so  that  no  allegation  on  the 
subject  was  necessary,  it  will  be  rejected  as  surplusage,  and  it 
need  not  be  proved  .  .  .  except  where,  by  the  unnecessary  allega- 
tion, the  plaintiff  shows  that  he  has  no  cause  of  action."^  Con- 
formably with  these  rules,  superfluous  allegations  in  a  declaration 
may  be  rejected,  and  treated  as  if  they  had  not  been  there.^  If 
the  whole  of  an  averment  may  be  stricken  out  without  destroying 
the  plaintiff's  right  of  action,  it  is  not  necessary  to  prove  it.'^ 
Immaterial  averments,  which  must  be  proved  when  alleged,  are 
those  which  enter  into  the  foundation  of  the  action  ;  as,  an  aver- 

'  Brewer  v.  Hyndman,  18  N.  H.  9.  ^  1  Chit.  PI.  232. 

2  Goss  V.  Austin,  11  Allen,  525.  6  jfoyt  v.  Scelev,  18  Conn.  358. 

»  Stout  r.  Coffin,  28  Cal.  65.  ^  Maxwell  r.  Maxwell,  81  Maine,  184. 

*  McConnell  v.  Kibbe,  33  III.  175.  See  Jarvis  v.  M'Bride,  18  Wis.  31G. 


246  PLEADING.  [book   III. 

ment  of  a  particular  estate,  when  occupancy  merely  would  support 
the  action.  Impertinent  matter  is  that  which  has  no  necessary 
connection  with  the  cause  of  action,  and  may  be  stricken  out  on 
motion. 1  (a) 

§  10  6.  A  strong  illustration  of  these  rules  is  found  in  a  late 
case  in  Massachusetts,  which  decides  that  in  an  action  on  a 
policy  of  insurance  the  defendants  may  prove  a  false^  though  not 
fraudulent,  representation  as  to  value,  though  alleged  in  the 
answer  to  be  both  false  and  fraudulent;  it  being  immaterial,  for 
the  purposes  of  the  action,  whether  or  not  the  representation  was 
designedly  erroneous,  and  made  in  order  to  gain  an  undue  advan- 
tage.2  (6)  So  in  an  action  for  fraudulently  obtaining  a  farm,  in 
exchange  for  worthless  stock,  where  it  was  averred  that  the  plain- 
tiff relied  upon  the  fraudulent  representations,  as  to  the  condition 
of  the  company,  and  that  the  certificate  was  valid  ;  held  the  latter 
averment  might  be  rejected  as  surplusage.^  So  damages  may  be 
recovered  in  an  action  by  a  purchaser  of  standing  timber  for 
trespass  thereon,  notwithstanding  a  demand  for  equitable  relief, 
in  a  complaint  setting  forth  nothing  for  which  there  is  not  an  ade- 
quate legal  remedy.'^ 

§  11.  And  the  rule  as  to  variance  is  not  enforced  in  other 
respects  with  unreasonable  strictness.  (6)  As  remarked  by  an 
approved  writer,  "  it  does  not  generally  apply  to  allegations 
of    number,  magnitude,  quantity,  (c)   value,  time,  (c?)   sums  of 

1  Grubb  V.  Mahoning,  &c.,  14  Penn.  302.  3  yates  v.  Alden,  41  Barb.  172, 

2  Lewis  V.  Eagle,  &c.,  10  Gray,  508.  *  Strcebe  v.  Fehl,  22  Wis.  337. 

(a)  Averments  in  a  declaration  not  put  to  be  established.     Catlin  v.   Gunter,   1 

in  issue  by  the  pleadings   need  not    be  Kern.  368. 

proved.     Edwards  v.  State,  22  Ark.  303.  (c)When  the  difference  between  the  alle- 

A  substantial  averment  of  a  cause  of  gation  and  proof  does  not  lie  in  hind,  but 

action,  corresponding  with  the  testimony,  in  quantity  or  degree,  it  does  not  constitute 

is  sufficient.     Callahan   v.    Caffarata,  39  a  variance  under  the  (Cal.)  Practice  Act. 

Mis.  136.  Plate  v.  Vega,  31  Cal.  383. 

The  ultimate  facts  only  need  be  averred.  Upon  a  feigned  issue,  under  the  (Pa.) 

Evidence  of  probative  facts  should  not  be  Sheriff-interpleader  Act,  to  test  the  owner- 

excluded,   though  not  alleged.     Grewell  ship  of  goods  levied   on    execution,  the 

V.  Walden,  23  Cal.  165.     See  §  3.  plaintiff  need    not    prove    ownership    of 

Where  the  variance  is  such  that  the  them   all.     Rush   v.  Vought,    55    Penn. 

defendant  could  not  have  been  misled  by  437. 

it,  the  court  may  properly  disregard  it.  (d)  A  declaration  against  a  master,  for 

Herrick  v.  Graves,  16  Wis.  157.  negligence  of  his  servant,  alleged,  by  way 

(h)  See   21   Md.  399.     In  New    York,  of  inducement,  "that  the  defendants  were 

provisions  in  the  Code  of  Procedure  have  possessed  of  a  cart  and  horse,  which  was 

changed  the  rule  as  to  a  variance  between  being  driven  by  their  servant,"  without 

pleadings  and  proofs,  and  they  apply  to  stating,  "  at  the  time  of  the  grievance  " 

cases  wherein  usury  is  alleged  and  sought  complained  of.     Held,  an  immaterial  alle- 


CH.  I.] 


GENERAL  RULES  OF  PLEADING. 


247 


money,  (a)  and  the  like,  provided  the  proof  in  regard  to  these  is  suflS- 
cient  to  substantiate  the  chiim  set  up  ;  except  in  those  cases  where 
they  operate  by  way  of  limitation,  or  description  of  other  matters, 
in  tliemselves  essential."  ^  (6)     So,  under  a  complaint  alleging  that 

1  1  Grcenl.  Ev.  133,  §  63. 


fiation,  mill  not   traversable.     Mitchell  v. 
Crasweller,  10  Fav^.  L.  &.  Eq.  448. 

In  an  action  tor  an  injury  against 
a  railroad  companj',  it  is  not  a  fatal 
variance,  that  tiie  injury  is  proved  to 
have  been  sustained  on  a  day  diflercnt 
from  that  alleiied.  Ausnsta,  &c.  v.  Mc- 
Elmiirry,  24  (ieo.  7.5. 

With  rofi'rence  to  time,  however,  al- 
thoujili  time  stated  in  a  pleadiiiji;  is  often 
not  material,  tiiat  is,  may  l)e  departed 
from  in  evidence  ;  the  rule  is  still  applied, 
that  all  alie<;ations  are  evidence  against 
the  party  making  them,  as  his  admissions. 
All  presumptions  of  law  in  favor  of  a 
j)arty  must  lie  consistent  with  his  allega- 
tions, anil  none  will  he  indulged  for  his 
benefit  in  opposition  to  them.  Andrews 
i:  Chadliourne,  lU  P.arh.  147. 

Inasmuch  as  time  laid  under  a  videlicet 
is  not  re(|uired  to  lie  proved  as  alleged ; 
when  the  time  of  killing  an  estray  is  thus 
laid,  although  the  time  sjiecified  is  within 
twelve  months  after  the  alleged  straying, 
it  is  not  a  sulHcient  averment  that  it  was 
within  the  twelve  months.  Simpson  v. 
Talbot,  -Jo  Ala.  4f)9. 

The  immateriality  of  time  in  pleading 
may  appear  in  other  aspects  than  that  of 
variance.  Administrators  brought  an 
action  to  recover  damages  for  an  injury 
done  to  their  intestate,  which  resulted  ill 
his  death.  The  complaint  averred,  that 
on  or  about  the  liStli  day  of  December, 
1849,  at  M.,  the  defendant  assaulted  the 
deceased,  &c.,  b}^  means  of  which  he  died 
on  the  "i^.th  day  of  December,  1849.  The 
defendant  denied  tiiat  on  or  aliout  the  18th 
day  of  December,  1849,  at  M.,  or  at  any 
other  place,  he  wrongfully  made  an  as- 
sault, &c.,  or  that  "  on  or  about  the  ^oth 
day  of  December,  1849,  the  said  deceased 
died  of  injuries  inflicted  by  defendant." 
Held,  that,  time  and  jilace  being  imma- 
terial, this  was  a  clear  case  of  negative 
])regnant,  and,  as  the  ])leadings  stood,  no 
evidence  could  be  given  that  the  injury 
was  caused  by  another  person.  The 
court  remark:  "  There  were  two  ways  in 
which  the  defendant  might  have  .  .  .  put 
in  issue  the  fact  of  his  doing  the  act.  He 
might  have  negatived  any  other  assault 
on  a  ditlercnt  day  .  .  .  or  he  might  hiive 
denied  the  assault  in  modo  et  J'onua,  which 
does  not  ])ut  time  in  issue."  Baker  v. 
Bailey,  16  Barb.  54-56. 


When  a  complaint  avers  that  an  event 
occurred  on  a  i)articular  day,  a  denial  in 
the  very  words  of  the  conijilaint  is  a 
negative,  jiregnant  with  the  admission 
that  the  event  may  have  occurred  on 
some  other  day,  and  is  insufficient. 
Schaetzel  v.  Germantown,  22  Wis.  412. 

In  an  action  lor  a  wrong,  with  an  alle" 
gallon  that  it  continued  from  time  to  time' 
from  the  date  of  tiie  act,  until  the  com" 
mencement  of  suit,  claiming  sjiecial  dam- 
ages ;  it  is  not  necessary  to  state  the  time 
or  times  when  the  damages  were  sus- 
tained, as  the  legal  effect  of  the  allegation 
is,  that  they  were  sustained  when  the  act 
was  committed,  and  on  divers  days  be- 
tween that  time  and  the  commencement 
of  suit.     jMcConnel  r.  Kibbe,  ;i3  111.  175. 

At  common  law,  the  allegation  of  time 
was  in  general  a  mere  form  ;  and,  mere 
form  in  pleading  having  been  abolished 
bj'  the  (Kans.)  Code,  such  allegation  may 
be  omitted,  except  where  the  statement 
of  time  in  common-law  pleading  is  ma- 
terial and  traversable.  Backus  v.  Clark, 
1  Kans.  303. 

Proof  that  an  injurj' was  done  on  any 
otiier  day  than  that  alleged,  if  within  tiie 
Statuteof  Limitations,  and  before  the  com- 
mencement of  suit,  is  sufficient.  Toledo 
v.  McChmnon,  41  111.  238. 

An  averment,  in  an  action  of  forcible 
entry~«nd  detainer,  that  the  ])laiiitiff"  was 
in  possession  on  a  particular  day,  that  at 
a  subsequent  day  the  defendant  forcibly 
entered,  and  that  the  plaintiff  was  on  that 
day  the  owner,  and  still  is  the  owner,  is 
not  sufficient ;  as  this  is  not  an  averment 
that  he  was  the  owner  during  all  the 
intervening  time,  and  as  the  fact  of  own- 
ership is  immaterial.  Spurck  v.  Eorsyth, 
40  111.  438. 

Where  an  action  is  brought  against  a 
city,  to  recover  damages  resulting  from 
improvt'inents  made  in  the  streets  at  a 
certain  time,  the  allegation  of  the  time  is 
material,  and  must  be  proved.  Kortz  v. 
Lafayette,  23  Ind.  382. 

(a)  An  allegation  of  an  amount  of  unliqui- 
dated damages  or  a  value  is  not  to  be 
taken  as  true  by  an  omission  to  deny  it, 
e.\ce])t  to  sustain  jurisdiction,  or  to  sliow 
the  performance  of  a  contract  reipiiring 
such  value,  or  the  like.  Stuart  v.  Binsse, 
10  Bosw.  43G.  ■^. 

(b)  The  same  writer  further  remarks  : 


248  PLEADING.  [book   III. 

injuries  were  "  wrongfully,  wilfully,  and  maliciously  "  inflicted,  it  is 
competent  to  sliow  that  they  were  negligently  or  carelessly  done.^ 
So  where,  in  an  action  against  a  common  carrier,  for  failure  to 
carry  and  deliver  a  draft,  the  complaint   describes  the  draft  as 
signed  by  "John  Q.  Jackson;"  proof  that  it  was  signed  by  "John 
Q.  Jackson,  agent,"  is  an  immaterial  variance.'*^     So,  in  general, 
an  allegation  which  is  merely  descriptio  personcs  is  surplusage, 
and  need  not  be  proved.^     So  in  an  action  under  a  statute,  au- 
thorizing  the    recovery  of  compensation    for  causing  death    by 
wrongful  act,  &c.,  the  allegation  that  defendants  owned,  as  ten- 
ants in  common,  the  entire  block  in  front  of  which  the  accident 
occurred,  is   sustained  by  proof  that  they  owned  such  block  in 
distinct  parcels  in  severalty.*     So  where  a  suit  is  brought  to  re- 
cover property  in  the  possession  of  the  defendant,  it  is  immaterial 
whether  the  possession  was  obtained  in  the  manner  described  in 
the  petition  or  not.^    So  where  the  plaintiff,  in  an  action  on  the  case 
for  false  warranty  of  a  horse,  described  the  horse  as  "  a  certain  sor- 
rel horse  belonging  to  the  defendant,"  and  the  proof  was,  that  the 
horse  was  owned  by  the  defendant  and  another;  held,  the  allegation 
regarding  the  title  of  the  horse  was  not  descriptive  of  the  cause 
of  action,  but  was  mere  surplusage,  and  consequently  there  was  no 
variance.     The  court  remarked,  that  this  allegation  was  as  much 
surplusage  as  would  be  an  allegation  of  the  age,  size,  or  pedigree 
of  the  horse.    That  the  defendant  sold  the  horse,  took  the  pay  for 
it,  and  impliedly  warranted  the  title,  was  enough  to  satisfy  the 
material  allegations  of  the  declaration.^    So  in  case,  for  deceit,  by 
a  warranty  that  a  horse  was  well  and  sound,  a  breach  was  alleged, 
that  he  was  not  well  and  sound,  but  that  he  was  infected  with 
glanders,  and  otherwise  unsound  and  diseased.     Held,  the  allega- 
tion as  to  the  glanders  might  be  struck  out  as  surplusage,  there 
being  a  sufficient  breach  without  it,  and  it  need  not,  therefore,  be 
proved.'^     So  in  all  actions  for  injuries,  ex  delicto,  to  the  person 
or  to  personal  property,  the  venue  is  in  general  transitory,  and 

1  Frank  v.  Avery,  21  Wis.  166.  5  Oliver  v.  Cliapman,  15  Tex.  400. 

2  Zeisiler  v.  Wells,  28  Cal.  263.  «  Starr  v.  Anderson,  19  Conn.  338. 

3  Agee  V.  Williams,  27  Ala.  644.  ^  Fisk  v.  Hicks,  11  Fost.  535. 

4  Gay  V.  Winter,  34  Cal.  153. 

"  But  the  party  may  now,  in  almost  every  given  by  statutes  to  the  courts  of  most  of 
.ease,  avoul  the  consequences  of  a  variance  by  the  United  States."  1  Greenl.  Ev.  145, 
amendment."      This    power    "  has    been    §  73. 


CH.  I.]  GENERAL  RULES  OF  PLEADING.  249 

may  be  laid  in  any  county,  though  committed  out  of  the  jurisdic- 
tion of  the  court  or  out  of  the  State. ^  And,  "  in  tlie  averment  of 
damages,  it  is  not  necessary  to  be  exact."  ^  Hence,  in  an  action 
by  a  seller  against  a  buyer,  for  fraudulent  representation  and  com- 
ment as  to  the  value  of  the  property,  it  is  not  a  fatal  variance,  that 
the  price  paid  was  more  than  that  alleged.^  So  in  an  action  on  the 
case,  it  is  not  necessary  to  be  exact  in  the  averment  of  damages, 
and  the  proof  need  not  sustain  the  allegations  in  this  respect.* 
So  upon  a  declaration  "  that  the  defendants  wrongfully  deprived 
the  plaintiff  of  the  use  and  possession  of  the  plaintiff's  goods; 
that  is  to  say,  one  hundred  barrels  of  flour,  and  the  plaintiff  claims 
one  thousand  dollars  :  "  held,  on  demurrer,  the  value  was  not  of 
the  substance  of  the  issue,  and,  under  the  (Md.)  Statute  of  1856, 
c.  112,  was  not  material  to  be  alleged.^  So  in  trover,  trespass,  or 
replevin,  before  the  (Wis.)  Code,  it  was  not  necessary  for  the 
defendant  to  deny  the  value  or  the  damages  alleged ;  and  the 
Code  has  not  altered  the  practice  in  this  respect.''  So  evidence, 
that  a  party  by  making  a  dam  higher  or  tighter,  caused  the  water 
to  flow  the  plaintiff's  land  to  a  greater  height,  is  admissible  in  an 
action  on  the  case  for  maintaining  and  keeping  up  a  dam."  So,  in 
Missouri,  where  the  plaintiff  sued  for  negligence  in  the  construc- 
tion of  a  sewer,  and  alleged  that,  at  the  time  of  the  accident,"  the 
sewer  gave  way ; "  and  the  proof  was,  that  the  sewer  had  given 
way  previous  to  the  accident :  held,  no  such  variance,  under  the 
new  practice,  as  to  occasion  a  nonsuit.^  So,  in  New  York,  under 
the  Code,  in  an  action  against  common  carriers  for  non-delivery 
of  goods,  the  complaint  may  allege  that  the  goods  were  delivered 
to  them  at  their  principal  office  in  one  street,  though  the  proof  is 
of  a  delivery  to  their  agent  at  an  office  of  the  defendants  in 
another  street.^  So,  in  an  action  against  a  railroad  for  negligently 
killing  the  plaintiff's  horses,  the  declaration  may  allege  that  the 
horses  had  escaped  from  his  close  into  the  close  of  divers  other 
persons  between  his  land  and  the  railroad,  though  the  proof  is  of 
but  one  intermediate  close.^*^  So  in  trespass  qu.  claus.,  and  a 
justification  as  a  "  public  highway,"  any  public  way,   however 

1  Northern,  &c.  v.  Scholl,  16  Md.  331.  «  Jenkins  ?•.  Steanka,  19  Wis.  126_. 

-  Per  Aldis,  J.,  Mallory  v.  Leacli,  35  ^  Curtice  v.  Toniitson,  19  N.  II.  471. 

Verm.  105.  ^  Kecvcs  v.  Larkin,  19  Mis.  VJ2. 

3  lb.  156.  9  Newstadt  v.  Adams,  5  Duer,  43. 

*  Mallory  v.  Leach,  35  Vt.  156.  lO  Underhill  v.  New  Vork,  &c.,  '21  Barb. 

6  Kichardson  v.  Hall,  21  Md.  399.  489. 


250  PLEADING.  [book   III. 

named,  by  land  or  water,  may  be  proved.^  So,  under  a  declaration 
setting  forth  an  obstruction  of  a  way  appurtenant  to  a  close, 
damages  may  be  recovered,  if  the  way  is  appurtenant  to  any  part  of 
the  close. ^  So  the  want  of  a  safeguard  against  a  danger  near  a 
highway  may  be  alleged  as  a  defect  in  the  road.^  So  a  declara- 
tion in  a  real  action  against  a  married  woman,  that  she  disseised 
the  plaintiff,  is  consistent  with  evidence  of  fraudulent  convey- 
ances to  her  to  her  sole  and  separate  use  ;  such  conveyances 
being  void  against  the  plaintiff,  though  valid  between  the  parties.^ 
And  more  especiall}^  a  court  above  will  disregard  an  unimportant' 
variance  as  ground  of  error.  As  where,  under  a  count  for  negli- 
gence in  not  collecting  a  note,  the  case  had  been  tried  on  the 
merits  without  objection,  and  the  recovery  was  on  the  ground  of 
neglect  to  inform  the  depositor  of  the  non-payment,  and  to  return 
him  the  note.^ 

§  11  a.  It  maybe  added,  in  connection  with  the  subject  of  vari- 
ance, that  truth  is  generally  enumerated  as  one  of  the  elements  of 
good  pleading.  With  reference,  however,  to  this  particular  point, 
as  well  as  others,  the  general  rule  is  often  departed  from.  Al- 
though truth  is  one  of  the  elements  of  a  good  plea,  there  are 
some  instances  where  fiction  is  allowable.  As,  in  the  action  of 
ejectment,  a  demise  to  the  nominal  plaintiff.  Or,  in  trover,  that 
the  defendant  found  the  goods.  So  it  is  allowable  to  exceed  the 
truth,  in  pleading,  with  reference  to  number,  quantity,  and 
value.^ 

§  11  &.  Somewhat  analogous  to  the  rule,  as  to  variance  between 
the  pleadings  and  the  evidence,  is  that  requiring  consistency  of 
successive  pleadings  with  each  other.  Upon  this  subject  it  is 
said :  "  A  departure  in  pleading  is  said  to  be  when  a  party  quits 
or  departs  from  the  case  or  defence  which  he  has  first  made,  and 
has  recourse  to  another,  and  may  occur  in  a  replication,  rejoinder, 
or  other  subsequent  pleading  ;  it  is  when  his  replication  or  re- 
joinder contains  matter  not  pursuant  to  the  declaration  or  plea, 
and  which  does  not  support  and  fortify  it.  A  departure  in  plead- 
ing is  not  allowed,  because  the  record  would,  by  such  means,  be 
spun  into  endless  prolixity  ;  for,  if  it  were  permitted,  he  who  has 

1  Hey  ward  v.  Chisolm,  11  Rich.  253.  ^  Wingate  i'.  Mechanics',  &c.,  10  Barr, 

2  Pettingill  ;•.  Porter,  3  Allen,  349.  104. 

3  Willey  V.  Portsmouth,  35  N.  H.  303.  «  1  Chit.  PI.  229. 
*  Blake  v.  Sawin,  10  Allen,  340. 


CH.  I.] 


GENERAL  RULES  OF  PLEADING. 


251 


departed  from  and  relinquished  his  first  plea,  might,  in  every  dif- 
ferent stage  of  the  cause,  resort  to  a  second,  third,  or  even  further 
defence,  and  thereby  pleading  would  become  infinite."^  And,  in 
a  late  case,  it  is  said :  "  The  practice  does  not  allow  suit  to  be 
brought  on  one  cause  of  action,  and,  when  a  complete  bar  is  pre- 
sented, to  set  up  and  rely  upon  another  for  recovery." - 

§  11  c.  As  we  have  seen,  the  defect  of  departure  applies  alike 
to  the  pleading  following  the  ^j/ea,  so  called;  and  to  the  declara- 
tion, as  compared  with  the  replication.  The  example  given  by 
Lord  Coke  is  of  this  latter  description.  If  the  declaration  be 
founded  on  the  common  law,  the  plaintiff,  in  his  replication,  can- 
not maintain  it  by  a  special  custom.^  And,  in  a  late  case,  the 
rule  was  distinctly  applied,  that,  where  suit  is  brought  on  one 
cause  of  action,  to  which  a  complete  bar  is  presented,  the  plain- 
tiff cannot  by  his  replication,  set  up  and  rely  upon  another.*  (a) 
As  where,  in  an  action  for  a  nuisance,  to  which  the  Statute  of 
Limitations  was  pleaded,  the  plaintiff  re[)lied,  that  the  injury  re- 
sulted from  a  continuance  of  the  nuisance,  and  within  five  years. 
So  to  a  complaint,  charging  the  acceptance  of  goods  purchased 
to  have  been  procured  by  the  fraudulent  representations  of  the 
seller,  without  examination  by  the  buyer,  the  defendant  answered, 
denying  the  fraud,  and  alleging  that  the  buyer  had  examined  the 
goods,  and  had  full  knowledge  of  their  quality.     The  reply  ad- 


1  1  Chit.  PI.  634;  2  Saun.  84  a,  n.  1. 
See  Gerrish  v.  Johnson,  1  Jones,  SSo  ; 
M'Connel  v.  Kibbe,  29  111.  483  ;  Thomp- 
son V.  Fellows,  1  Fost.  425. 

(fl)  This  case  furnishes  a  very  rigid 
application  of  tiie  rule  as  to  departure. 
The  declaration  alleged,  that  the  defend- 
ant cut  away  and  removed  a  ])ortion  of  the 
partition-wall,  &c.,  whereby  the  plaintiff's 
part  of  the  tenement  wa.s  injured.  Also, 
that  the  change  made  in  the  wall  occurred 
in  three  successive  years,  and  at  divers 
times  since,  till  suit  commenced  ;  and  that 
the  wall  had  been  and  continued  to  be 
injured  ])ermanently.  "  'i"he  gravamen 
of  the  suit  was  the  creation,  and  not  the 
continuance,  of  the  nuisance." 

To  authorize  the  court  to  reject  a  declar- 
ation, for  variance  from  the  cause  of  action 
indorsed  on  the  writ,  there  must  be  a  total 
departure  from  the  latter.  Tenison  v. 
Martin,  13  Ala.  2L 

Where  a  capias  was  in  case,  for  money 
received  by  the  defendant,  in  a  fiduciary 
capacity,  and  tlie  declaration,  for  a  breach 
of  duty  as  an  auctioneer,  in  omitting  to 


2  Per  Walker,  J.,  29  111.  486. 

3  Co.  Lit.  304  a. 

4  McConnel  v.  Kibbe,  29  111.  483. 


pay  over  money,  &c.,  with  a  count  in  tro- 
ver ;  held,  not  such  a  variance  as  to  war- 
rant setting  aside  the  declaration,  on 
motion.    Haviland  r.  Tuttle,  1  Sandf  668. 

Where  a  declaration  aliege<l  that  tlie 
defendants  wrongfuil}'  took  certain  goods, 
the  replication,  that  the  taking  was  by  a 
sherif}"  at  the  instance  and  by  the  direc- 
tion of  the  defendants  ;  held,  no  departure. 
Kichardson  r.  Hall,  21  Md.  399. 

To  a  <leclaration,  alleging  that  the  de- 
fendant wrongfully  raiseii  and  continued 
an  embankment,  which  caused  the  water 
to  flow  upon  and  damage  tlie  plaintiff's 
house,  the  defendant  pleaded,  that  lie 
raised  and  continued  the  embankment 
mider  power  given  him  by  statute.  The 
jilaintiff  replied,  tiiat  the  damage  was 
caused  by  the  negligent  construction  of 
the  embankment.  Held,  that  there  was 
no  dej)arture.  Brine  v.  Great,  2  B.  &  S. 
402. 


252  PLEADING.  [book  III. 

mitted  an  examination,  and  a  knowledge  of  certain  facts  indicat- 
ing the  defect  complained  of,  but  averred  that  the  plaintiff  re- 
lied on  the  defendant's  representations,  and  that  the  defendant 
had  subsequently  promised  to  pay  the  damages  claimed.  Held, 
the  reply  was  a  departure,  and  demurrable.^ 

§  12.  Directness  and  certainty  are  required  in  pleading.  By 
certainty  "  is  signified  a  clear  and  distinct  statement  of  the  facts, 
which  constitute  the  cause  of  action  or  ground  of  defence,  so 
that  they  may  be  understood,  by  the  party  who  is  to  answer  them, 
by  the  jury  who  are  to  ascertain  the  truth  of  the  allegations, 
and  by  the  court  who  are  to  give  judgment."  ^  Facts  must  be 
alleged  directly,  and  not  by  way  of  rehearsal,  argument,  or  infer- 
ence, and,  if  not  thus  alleged,  they  are  not  admitted  by  a  failure 
to  traverse  them.^  (a)  It  must  be  assumed  that  the  pleader  has 
stated  his  claim  as  strongly  as  he  can  safely.  Thus,  in  pleading 
a  right  of  way,  it  is  necessary  to  state  that  the  privilege  of  pass- 
ing extends  to  servants,  or  the  justification  will  not  extend  to 
them.  ''  The  court  cannot  say  that  a  right  of  way  of  course 
extends  to  servants.  It  may  be,  either  by  grant  or  prescription, 
the  personal  right  of  the  owner  and  his  tenants  ;  and  servants 
may  have  been  expressly  excluded."  *  So,  in  two  actions  against 
a  city  corporation,  each  petition  charged,  directly,  that  the  money 
sued  for  was  paid  by  the  plaintiff,  as  taxes,  based  upon  an  illegal 

1  McAroy  v.  Wright,  25  Ind.  22.  ^  Mnulton  v.  Doran,  10  Minn.  67. 

■■2  Cliit.  PI.  236.  See  Martini;.  Bartow,  *  Bartlett  v.  Prescott,  41  N.  H.  493; 
35  Geo.  820.  per  Bell,  J.,  ib.  500. 

(a)  An  answer,  stating  new  matter  as  mation    sufficient    to    form    a   belief    is 

a  defence,  must  state  facts  wliich,  if  true,  evasive,  and  does  not  raise  an  issue.    Mills 

will  bar  the  action,  or  so  much  of  it  as  is  v.  Jetlerson,  20  Wis.  60. 

attempted   to    be    answered.     Carter    v.  In  an  action  for  conversion,  a  plea  of 

Koezley,  9  Bosw.  583.  former  recovery,  in  an  action  based  on  a 

The  defendant  must  set  forth  his  de-  wrongful  sale  of  the  property,  is  demur- 
fence    specifically,    and    with   the    same  rable,  unless  it  shows  that  the  conversion 
precision    and    accuracy    required    of  a  was  identical  with  the  sale.     Hopkinson  y. 
plaintiff     Meeker  v.  Wren,  1  Wash.  Terr.  Shelton,  37  Ala.  306. 
87 ;  Koeder  v.  Brown,  ib.  130.  Where  it  was   alleged   that  defendant 

A  defendant  claiming  affirmatiA^e  relief  "  unlawfully  and   wrongfully   seized  and 

must  plead  as  fully  as  if  plaintiff.     Rose  v.  took  said  property  into  his  possession  from 

Treadway,  4  Nev.  455.  said  plaintiff,"  and  the  denial  was  "  that 

When  matters  of  public  record  are  in-  he  wrongfully  and  unlawfully  seized,  took, 

Tolved  in  pleading,  an  answer,  denying  or  carried  away  the  said  property  ;  "  held, 

such  matters  on  information  and  belief,  is  the  taking  was  not  specifically  denied,  and 

bad.     State   v.    McGarry,    21   Wis.    496.  was  therefore   admitted.     Woodworth  v. 

Where  a  complaint  against  a  corporation  Knowlton,  22  Cal.  164. 

alleges  facts  necessarily  within  the  knowl-  Where  a  statute  requires  a  "  full  and 

edge  of  the  officers,  or  evidenced  by  the  clear  statement,"   a  petition   for    taking 

records  and  papers  under  their  official  con-  separate  articles  must  state  the  value  of 

trol,  a  denial  of  any  knowledge  or  infor-  each.     Forbes  v.  Moore,  32  Tex.  195. 


CH.  I.]  GENERAL  RULES  OF  PLEADING.  253 

assessment  of  his  surplus  made  by  the  city,  and  in  ignorance  of 
his  rights,  or  of  the  fact  that  such  assessment  was  illegal,  but 
that  he   believed  at  the  time   that  it  was  legal  and  collectible. 
The  answer  to   one   petition  was  to  the  effect,  that  the  plaintilF 
was  apprised  of  the  existence  of  the  law  and  the  facts  in  relation 
to    said    assessment ;    and   with    such    knowledge   went  forward 
and  voluntarily  paid  the  tax,  and  in  the  year  185G  went  to  the 
assessor  and  required  him  to  assess  his  surplus  for  that  year.    The 
answer  to  the  other  petition  alleged,  that  the  plaintiff  assented  to 
the  assessment,  and,  with  a  full  knowledge  of  "  the  law  and  facts  " 
in  relation  to  said  tax,  voluntarily  and  of  his  own  accord  paid  the 
taxes,  if  at  all,  to  the  city.     Held,  the   answers  were  equivocal 
and  evasive,  and  insufficient   upon  demurrer. ^     So  a   complaint 
against  a  common  carrier  for  the  loss  of  a  draft  must  state  the 
date  and  amount  of  the  draft,  the  time  when,  and  the  person  to 
whom  it  was  payable.^     So  a  warrant  against  a  railroad  "  for  the 
non-payment  of  the  sum  of  $35  due  by  damage  sustained,"  there 
being  nothing  in  any  other  part  of  the  proceedings  to  make  it 
more   certain,  is  fatally    defective.'^     So,  where   the  action    de- 
pends upon  malice,  it  must  be  alleged.^     So  in  an  action  against 
a  sheriff  for  seizing  a  pianoforte,  the  allegation,  that  the  plaintiff 
is   a  "  pianist,  and    taught   music   within    three    months  of  the 
seizure,"  is  not  a  sufficient  allegation  that  music-teaching  was 
his  business.^     So  a  plea,  that  the  cause  of  action  accrued  in  the 
furthering  and  countenancing  of  a  company  without  any  legal 
authority  either  by  statute  or  royal  charter,  or  having  been  duly 
registered  under  7  &  9  Vict.,  c.  110,  pretending  to  raise  trans- 
ferable stock,  and  consisting  of  more  than  twenty-five  members, 
and  which  was  carried  on  to  the  grievance  and  nuisance  of  the 
queen's  subjects,  is  bad,  as  the  special  averments  do  not  show 
any    illegality,   and    the    general   averments    are    not    sufficient 
for  that  purpose.^     So  the   mere    allegation    in  a  petition,  that 
a  horse   was  branded   U.  S.,  is  not  equivalent  to  an   averment 
of  title  in  the  federal  government,  nor  is  such  a  title  a  legal  de- 
duction therefrom."     So  in  an  action  against  a  judge  of  probate, 
for  appointing,  as  guardian  to  a  minor,  a  man  who  was  insolvent, 

1  Covington  v.  Powell,  2   Met.  (Ky.)  *  Mooney  f.  Kennctt,  19  Mis.  551. 
226.  ^  Tanner  v.  liillint^s,  18  Wis.  103. 

2  Zeigler  v.  Wells,  23  Cal.  179.  6  Hunt  i'.   Hunter,  29  Eng.  L.  &  Eq. 
8  Wagoner  v.  North  Carolina,  &c.,  5     195. 

Jones,  367.  ''  Plummer  v.  Newdigate,  2  Duv.  1. 


254  PLEADING.  [book   III. 

without  security ;  a  declaration,  that  the  plaintiff  was  owner  and 
legal  possessor  of  $2000  worth  of  personal  property,  which  was 
spent  and  unaccounted  for  by  the  guardian,  is  insufficient.^  So 
where  the  petition  charged  the  defendant,  a  constable,  with  wrong- 
fully taking  personal  property  of  the  plaintiff,  and  the  answer 
alleged  I  hat  he  took  it  under  an  execution  against  A,  in  whose  pos- 
session it  w^as,  but  did  not  rebut  the  plaintiff's  allegation  that  it 
was  his  property;  held,  the  answer  was  properly  stricken  out.^ 
So,  to  a  complaint  alleging  quiet  and  peaceable  possession,  and  a 
disseisin  by  the  defendant  under  an  illegal  order  of  a  magistrate 
having  no  jurisdiction,  the  answer  should  directly  deny  the  alle- 
gations, or  confess  and  avoid  them,  by  stating  new  matter  perti- 
nent to  the  question  raised  by  the  complaint.^  So,  in  an  action 
for  false  imprisonment,  the  defendant  sought  to  justify  on  sus- 
picion of  forgery,  and  stated,  in  his  plea,  that  the  plaintiff  was 
suspiciously  possessed  of  a  note,  and  disposed  of  it  in  a  sus- 
picious manner,  and  in  a  suspicious  manner  left  England  and  went 
to  Scotland.  Held,  the  causes  of  suspicion  should  have  been  set 
forth.*  So  a  declaration,  that  the  plaintiff,  at  a  certain  time  past, 
was  induced  by  the  fraudulent  representations  of  the  defendant 
to  purchase  certain  stock  and  bonds,  and  "  said  stock  is  worthless 
and  without  value,  and  said  bonds,  if  of  any  value,  are  of  much 
less  value  than  the  amount  paid  for  them  by  the  plaintiff,"  is  bad, 
on  demurrer,  for  not  showing  that  the  stock  and  bonds  at  the  time 
of  the  purchase  were  of  less  value  than  he  paid  for  them.^  So, 
in  New  York,  while  the  Code  abolished  all  technical  rules  of 
pleading,  it  did  not  abolish  those  dictated  by  good  sense  and  nec- 
essary to  carry  into  effect  its  own  provisions ;  and  therefore 
the  facts  relied  on  as  a  defence  must  be  set  forth  with  so  much 
certainty,  as  to  enable  the  court  to  say,  that  if  true  they  consti- 
tute a  bar  to  the  action.*^  Though  the  denial  of  an  answer  may 
be  general  or  specific,  it  must  be  direct  and  unequivocal,  not 
matter  of  mere  implication  or  inference.  It  is  not  sufficient  to 
give  a  version  of  the  transaction  alleged,  in  some  respects  incon- 
sistent with  the  complaint.  As  where  the  complaint  alleged  that 
the  plaintiff,  May  29th,  1861,  owned  a  note,  and  employed  the  de- 
fendant, a  bank,  to  collect  it,  which  it  did,  but  failed  to  pay  over  the 

1  Phelps  V.  Sill,  1  Day,  315.  *  Mure  v.  Kaye,  4  Taun.  34. 

^  Barley  v.  Cannon,  17  Mis.  595.  ^  Squierw.  Piunkett,  11  Gray,  11. 

^  Ladd  V.  Stevenson,  1  Cal.  18.  6  Gihon  v.  Levy,  2  Duer,  176. 


CH.  I.] 


GENERAL  RULES  OF  PLEADING. 


255 


proceeds,  tliough  requested,  and  the  answer,  without  a  denial, 
set  forth  that  the  defendant  was  collecting  agent  in  New  York 
for  the  A.  Bank,  and  as  such  received  and  held  the  note  till 
maturity,  when  the  proceeds  were  received  by  it  as  such  agent, 
and  afterwards,  before  July  1,  1861,  it  paid  the  same  to  the  A. 
bank.i 

§  14.  Sometimes,  however,  it  will  be  sufficient  to  ;)llege  a  fact, 
from    which    another    material    fact    is    necessarily    inferred,  (a) 

1  West  V.  American,  &c.,  44  Barb.  17G. 


(n)  Where  a  word  li;is  been  omitted  in  a 
pleading  by  mistake,  ijut  tlie  meaniiifi  is 
perfectly  clear  without  it,  this  is  no  ground 
of  objection.  Trapnall  v.  Merrick,  21 
Ark.  503. 

The  transposition,  interpolation,  omis- 
sion, or  alteration,  of  some  of  the  words  in 
the  name  of  a  cor[)()ration,  is  ni^t  material, 
if  it  makes  no  essential  diflerence  in  sense. 
Board  r.  (rreenebaum,  'S'd  111.  tiO'J. 

The  language  of  a  pleading,  under  the 
(Wis.)  Code,  should  be  construed  in  the 
sense  in  which  it  was  employed  b}'  the 
pleader,  if  it  will  fairly  admit  of  that  con- 
struction. Spence  v.  Sjience,  17  Wis. 
448. 

Allegations  were  liberally  construed,  in 
accordance  with  section  114  of  the  (Ohio) 
Code.  Acton  v.  Knowles,  14  Ohio  (N.  S.), 
18. 

Pleadings,  under  the  (Ind.)  Code,  are 
not  necessarily  to  be  construed  most 
strongly  against  the  pleader.  Where  sub- 
stantial justice  will  be  promoted,  a  liberal 
construction  is  recjuired.  Dickensheets  v. 
Kaufman,  28  Ind.  2.51. 

So  in  Iowa,  under  Rev.  Sts.  §  2951. 
Gray  i'.  Coan,  '2?>  Iowa,  344. 

Every  reasonaVde  intendment  and  pre- 
sumption is  to  be  made  in  favor  of  a 
pleading,  and  a  complaint  will  not  be  held 
bad  on  demurrer,  however  defective,  un- 
certain, or  redundant  may  be  the  mode  of 
the  statement  of  tacts,  if  a  cause  of  action 
maj- be  gathered  from  it,  and,  taking  all 
the  facts  to  be  admitted,  the  court  cannot 
say  tiiat  tliey  do  not  constitute  any  cause 
of  action.     iSlorse  i'.  Gilman,  IG  Wis.  504. 

But,  in  general,  pleadings  are  construed 
in  favor  of  the  opposite  party.  Kequa  v. 
Guggenheim,  3  Lans.  51. 

Pleadings  should  be  so  framed,  as  to 
fairly  apprise  the  other  party  of  the 
ground  of  claim  or  defence,  and,  if  equiv- 
ocal, are  to  be  construeil  most  stn)ngly 
against  the  pleader.  Vaughan  v.  Everts, 
40  Vt.  526. 

Where  the  complaint  against  an  admin- 


istrator avers  that  he  has  taken  possession 
of  real  estate  of  the  decedent,  it  will  be 
presumed  that  it  was  a  legal  possession. 
Butt  V.  Clark,  23  Ind.  548. 

An  allegation,  that  defendants  sold  cer- 
tain stock,  may  be  deemed,  on  demurrer, 
to  imply  delivery.  Clark  v.  Meigs,  8 
Bosw.  tJ8y. 

When  the  law  presumes  a  fact,  — as, 
that  a  husband  and  wife  who  were  alive 
two  years  ago  are  still  living, — it  need 
not  be  stated  in  pleading.  Strccbe  v. 
Eehl,  22  Wis.  337. 

An  allegation,  that  a  person  was  judi- 
cially found  to  be  of  unsound  mind,  and 
to  have  been  of  unsoimd  miml  for  nearly 
two  years,  is  not  a  statement  of  unsound- 
ness. The  rule,  that  a  fact  which  the  law 
presumes  need  not  be  stated,  does  not 
applj%  as  the  finding  of  unsound  mind 
raised  only  a  prima  facie  presumption  of 
unsoundness,  and  the  rule  applies  to  con- 
clusive presumptions  alone.  Gregory  v. 
McFarland,  1  Duv.  59. 

An  objection  to  a  plea  on  account  of 
indefiniteness  or  uncertainty  is  waived  by 
proceeding  to  trial.  Meagher  v.  Morgan, 
3  Kans.  372 ;  Clark  v.  Eensky,  ib.  389. 

Under  §  45  of  the  (Cal.)  Practice  Act, 
objection  to  a  complaint  on  the  ground  of 
ambiguity  and  uncertainty  must  be  raised 
by  demurrer  ;  otherwise  it  will  be  deemed 
to  be  waived.  Brown  v.  Martin,  25  Cal. 
82. 

A  motion,  to  make  more  definite  and 
certain  matter  alleged  by  the  defendant  in 
mitigation  of  damages,  will  not  be  enter- 
tained. Smith  V.  Trafton,  3  Ivob.  (N.  Y.) 
709.  Action  to  recover  damages  for 
money  paid  to  A,  by  reason  of  false 
entries  made  in  the  books  of  the  ])laintiff 
by  the  defendants.  They  moved  for  a  bill 
of  particulars  of  the  false  entries,  and  the 
nature,  character,  and  pur])ose  thereof. 
Held,  the  plaintiff  could  not  be  recpiired 
to  show  how  the  entries  were  connected 
with  other  transactions.  Drake  v.  Thayer, 
5  Bob.  (N.  Y.)  694. 


256  PLEADING.  [book   III. 

Thus,  wliere  the  time  of  a  death,  upon  which  the  suit  is  founded, 
must  be  within  two  years  before  suit;  the  declaration  is  sufficient, 
if  tiie  time  is  named,  and  is  actually  within  two  years  before  ver- 
dict,^ So  in  case  of  a  petition,  that  defendants  received  a  bill  of 
exchange  for  collection,  but  failed  to  present  it  for  payment  at  the 
banking-house  where  it  was  payable;  that  the  drawees  had  left 
funds  there  to  meet  it,  which  were  subsequently  withdrawn  ;  that 
defendants  failed  to  give  notice  of  non-payment ;  and  that  the 
drawers  were  insolvent  from  the  time  of  such  withdrawal :  held, 
an  averment  of  the  solvency  of  the  drawees  at  the  maturity  of 
the  bill  was  not  necessary.^  So  a  plea  may  be  good  as  to  one  of 
several  injuries  alleged  in  one  count,  though  it  does  not  answer 
the  others.^  Or,  though  it  professes  to  answer  the  whole,  if  other 
pleas  which  answer  the  other  grounds  of  complaint  also  accom- 
pany it.^  So  it  was  held  sufficient  to  aver  that  the  act  com- 
plained of  was  wrongfully  done,  without  specifying  the  mode  or 
manner  in  which  it  was  done.^  So  when  an  injury  is  alleged,  tlie 
law  presumes  want  of  consent ;  it  need  not  therefore  be  expressly 
alleged.^  And  the  reasonable  distinction  is  made,  that  less  cer- 
tainty is  requisite  with  regard  to  facts  which  the  opposite  party 
is  presumed  to  know.  Thus,  in  an  action  for  not  repairing  a  pri- 
vate road  through  the  defendant's  ground,  it  is  sufficient  to  allege 
that  the  defendant,  by  reason  of  his  possession,  ought  to  have 
repaired,  &c.,  without  adding  by  what  right  or  obligation  he  was 
thus  bound ;  the  plaintiff  being  presumed  ignorant  of  the  defend- 
ant's title,  while  the  latter  has  the  power  of  distinctly  stating  it." 
And  an  exception  to  strict  certainty  is  found  in  the  rule,  that, ''  in 
an  action  for  words  spoken  in  England,  which  are  slanderous 
according  to  the  phrase  of  the  county  in  which  they  are  uttered, 

i  Hill  V.  Now  Haven,  87  Verm.  501.  *  Babb  v.  Mackey,  10  Wis.  371. 

See  Eramens  v.  Elderton,  26  Eng.  L.  &  5  21  jMd.  399. 

Eq.  1.  «  Fairhault  v.  Hulett.  10  Min.  30. 

2  Laughlin  v.  Greene,  14  Iowa,  92.  ^  1  Chit.  PL  238 ;  3  T.  R.  767. 

3  21  Md.  399. 

An   aflBdavit   of  defence   setting  forth  and  possession  thereof  by  the  plaintiff." 

substantially  a  good  defence  is  sufficient.  Held,    a    sufficient    allegation    of    title. 

Thompson  v.  Clark,  56  Penn.  33.  Bryant  v.  Bryant,  2  Rob.  (N.  Y.)  612. 

An  answer  need  not  deny  in  express         In   an   action  by   a  bank,   an   answer, 

terms  the  allegations  in  a  complaint,  if  it  alleging  that  tlie  plaintiff  usuriously  dis- 

fairly  meets  and  traverses  them.     Hill  v.  counted  the  drafts  sued  on,  contrary  to  the 

Smith,  27  Cal.  476.  statute,  &c.,  and  specifying  the  amount  of 

In  an  action  for  the  wrongful  taking  of  interest  taken,  although  bad  on  demurrer, 

personal  property,  the  answer  alleged  that  is  not  so  insufficient  an  averment  of  cor- 

the  defendant  had  been  the  owner  and  rupt  intent  as  to  justify  its  rejection  for 

possessor  "  ever  since  a  long  time  prior  to  frivolousness.      National    v.    Orcutt,    48 

the   alleged  acquirement   of  ownership  Barb.  256. 


CH.  I.]  GENERAL  RULES  OP  PLEADING.  257 

thougli  the  court  may  not  in  fact  know  wliat  they  signify,  it  is  not 
necessary  to  aver  their  signification."  ^  So,  in  general,  "  as  it  is 
an  intendment  of  law,  that  a  person  is  innocent  of  fraud,  or  any 
other  imputation  affecting  his  reputatit)n,  the  party  insisting  upon 
the  contrary  must  state  it  in  pleading.  Thus,  in  an  action  for 
words,  as,  for  saying  a  man  is  a  thief,  the  plaintiff  has  no  occa- 
sion to  aver  that  he  is  not  a  thief;  and  in  an  action  on  the  case 
for  maliciously  suing  out  a  commission  of  bankrupt,  it  is  not 
necessary  to  state,  in  the  declaration,  that  the  plaintiff  was  not 
indebted  to  the  defendant,  or  that  he  never  committed  an  act  of 
bankruptcy."'-^  So  it  is  held,  that  in  the  action  for  slander 
"falsely  "  is  equivalent  to  "maliciously."*^  So  the  words,  "  con- 
triving and  wrongfully  and  unjustly  intending  to  injure  the  plain- 
tiff, so  as  to  deprive  him  of  the  benefit  of"  a  judgment  on 
appeal,  are  a  sufficient  allegation,  in  an  action  against  a  clerk 
for  approving  an  insufficient  bond,  that  he  acted  wili'uily  and 
maliciously.* 

§  14  a.  The  point  of  certainty,  as  necessary  in  pleading,  often 
arises  in  connection  with  the  allegation  o^  fraud.  (See  Ch.  IV.) 
It  is  held,  that  an  allegation  of  fraud,  either  in  the  declaration  or 
plea,  must  state  the  facts  which  constitute  such  fraud.^  Thus  in  an 
action  to  set  aside  a  patent  for  land,  on  the  ground  that  it  was 
procured  by  false  suggestions,  fraudulent  concealments,  and  mis- 
representations, the  acts  must  be  specified.^  So,  in  an  action 
on  a  premium  note  given  to  an  insurance  company,  an  allegation 
in  general  terms,  that  it  was  a  fraudulent  corporation,  and  not 
able  to  pay  its  losses,  is  not  sufficient.  The  court  remark  : 
"  There  is  no  averment  of  fraud,  or  trick,  or  concealment,  to 
induce  the  insured  to  enter  into  the  contract  of  insurance.  Nor 
are  there  any  facts  disclosed  to  show  in  what  it  was  fraudulent. 
It  is  quite  possible  for  a  party  to  be  of  opinion  tliat  an  inability 
to  pay  losses  constitutes  the  corporation  a  fraudulent  one.  To 
different  minds,  different  acts  might  be  considered  fair  or  fraud- 
ulent; hence  the  necessity  of  the  rule  which  requires  that  the 
affidavit  of  defence  shall  '  state  specifically  and  at  length  '  the 
*  nature  and  character '  of  the  defence,  so  that  the  court  may  be 

1  1  Cliit.  ri.  224.  5  Keller  v.  Johnson,  11  Iml.  387 ;  Mur- 

2  lb.  227.  phy  v.  liyrd,  1  Hemp.  221 ;  Castle  v.  B&- 

3  1  Saun.  242  a,  n.  3.  tier,  23  Cal.  75. 

■*  BUlings  i;.  Lafferty,  31  111.  318.  «  Semple  v.  Hagar,  27  Cal.  163. 

17 


258  PLEADING.  [book   III. 

able  to  see  that  there  is  defence  that  calls  for  trial,"  ^  So 
the  declaration,  in  an  action  to  set  aside  a  patent,  must  state 
facts.^  So  a  civil  action,  charging  fraudulent  embezzlement  "  as 
agent  or  attorney,"  is  fatally  defective  in  the  alternative  alle- 
gation, although  the  objection  is  not  taken  until  after  judgment 
by  default.^  And,  where  fraud  lies  at  the  basis  of  the  action,  it 
must  be  distinctly  alleged.  Thus  the  complaint  in  an  action  by 
attaching  creditors,  alleging  that  the  defendants  have  a  large 
amount  of  personal  property,  consisting  of  money,  bills,  notes, 
&c.,  deposited  with  them  by,  and  belonging  to,  the  defendants  in 
the  attachment  suit,  but  not  fraud,  collusion,  or  combination, 
obstructing  the  ordinary  processes  of  the  law,  or  that  those  pro- 
cesses have  been  exhausted  or  resorted  to,  or  that  the  lien  can- 
not be  enforced  without  the  aid  of  the  court  in  the  exercise  of  its 
equitable  powers;  does  not  sustain  a  suit  for  such  interposition. 
The  remedy  is  under  §  238  of  the  (New  York)  Code.^  But,  on  the 
other  hand,  where  the  facts  alleged  constitute  a  fraud,  it  is  held 
not  necessary  to  aver  that  they  were  done  with  intent  to  defraud.^ 
So  in  a  suit  by  heirs,  to  set  aside  the  sale  of  lands,  fraudulently 
made  by  one  falsely  assuming  to  act  as  administrator  ;  the  plaintiffs 
offered  in  evidence  a  deed  from  the  grantor,  in  which  he  assumed 
to  act  as  administrator.  Objection  was  made,  that  the  petition 
did  not  allege  any  violation  of  duty  as  administrator,  and  that,  to 
set  aside  a  deed,  on  its  face  executed  in  a  fiduciary  capacity,  the 
failure  to  discharge  the  trust  should  have  been  alleged.  Held, 
the  allegation  of  fraud  in  assuming  to  act  as  administrator  was 
sufficient.*' 

§  14  h.  So  it  cannot  be  objected,  on  demurrer  to  a  declaration 
alleging  fraudulent  misrepresentations,  that  they  were  made  as 
to  a  matter  of  opinion." 

§  14  c.  So  an  answer  to  an  action  for  fraud  is  good,  when  it 
states  circumstances  from  which  it  can  be  reasonably  inferred 
that  the  fraud  charged  could  not  have  been  practised.^ 

§  14  d.  So  where  an  attorney  claims  a  sum  of  money  paid  for 
another  to  procure  an  act  of  the  legislature,  and  alleges  that  the 
expenditure  was   made  in   good  faith,  was  necessary,  and  was 

1  Sterling  v.  Insurance  Co.,  32  Penn.         5  McMahan  v.  Rice,  16  Tex.  385. 
75  ;  per  Thompson,  J.,  ib.  77.  6  McGaffey  v.  Millard,  17  ib.  365. 

2  Hill  V.  Miller,  36  Mis.  182.  7  Whitton  v.  Goddard,  36  Vt.  730. 
i  Porter  v.  Hermann,  8  Cal.  619.  8  Burk  v.  Stewig,  21  Tex.  418. 

*  Skinner  v.  Stuart,  3y  Barb.  206. 


CH.  I.]  GENERAL  RULES  OF  PLEADING.  259 

authorized  by  his  principal :  a  reply,  that  the  expenditure  was 
unlawful  and  corrupt,  and  was  used  and  squandered  to  corrupt 
the  legislature,  and  to  exert  upon  it  a  secret,  undue,  and  personal 
influence  by  lobbying;  that  it  was  not  necessary;  that  the  act 
was  honestly  passed,  and  was  not  secured  by  corrupt  means ;  is 
not  demurrable. 1 

§  14  e.  So  where  the  answer,  in  a  suit  on  a  bill  of  exchange, 
sets  up  payment,  part  in  money  and  the  residue  in  bills  of  ex- 
change, received  by  the  plaintiff  in  payment:  a  replication,  that 
at  the  time  of  delivery  of  said  bills  the  defendant  fraudulently 
misrepresented  to  the  plaintiff,  that  the  drawers  and  drawees 
were  solvent  and  able  to  pay  the  same,  and  would  pay  them  at 
maturity,  and  that  the  sums  therein  named  were  secured  by  mort- 
gage, and  that,  relying  on  these  representations,  the  plaintiff  re- 
ceived said  bills  to  be  applied  when  paid  to  the  extinguishment 
of  the  balance  due  on  the  bill  sued  on ;  is  not  a  departure,  but 
only  an  argumentative  denial  of  the  answer.^ 

§  14/.  So  a  complaint  is  good  on  demurrer,  which  alleges  that 
the  plaintiff  purchased  of  the  defendant  twenty-seven  head  of 
hogs  for  a  price  equal  to  the  full  value  of  sound  hogs  ;  that  the 
defendant  represented  them  to  be  sound  and  healthy  ;  that  the 
plaintiff  relied  upon  said  representations,  having  no  opportunity 
by  reasonable  diligence  to  discover  that  the  same  were  not  true ; 
that  in  fact  they  were  diseased  and  unhealthy,  being  then  affected 
with  hog  cholera,  and  known  to  be  so  by  the  defendant ;  and  that 
afterwards  twenty-five  of  them  died  of  that  disease,  &c.^ 

§  14  g.  So  a  complaint  alleged,  that,  at  the  sale  and  transfer  of 
a  note  and  mortgage,  "the  defendant  represented  to  the  plaintiff 
that  said  mortgage  was  good,  and  a  valid  security  for  the  pay- 
ment of  said  note,  and  the  plaintiff  supposed  and  verily  believed, 
at  the  time  he  bought  the  same  as  aforesaid,  the  said  mortgage 
to  be  good,  and  that  it  was  a  valid  and  sufficient  security,"  &c. 
Held,  a  sufficient  allegation  that  the  plaintiff  purchased  on  the 
faith  of  the  defendant's  representations.* 

§  14  h.  So  in  an  action  for  fraud  in  the  sale  of  land,  a  declara- 
tion is  sufficient,  which  states  that  the  defendant  induced  the 
plaintiff  to  purchase  by  fraudulently  misrepresenting,  in  the 
course  of  a  conversation  between  them  in  regard  to  the  sale,  "that 

1  Judiih  V.  Vincennes,  23  Ind.  273.  3  Baker  v.  McGinniss,  22  Iiid.  257. 

2  Frisbee  v.  Lindley,  23  lud.  6n.  «  Uahn  v.  Doolittle,  18  Wis.  1U6. 


260  PLEADING.  [book  III. 

"  there  were  three  thousand  spruce  logs  on  the  premises  (meaning 
that  there  were  spruce  trees  growing  thereon  that  would  cut 
and  make  three  thousand  spruce  logs  of  the  usual  and  customary 
size  and  quality)."  ^ 

§  15.  The  rule  of  directness  and  certainty  precludes  the  state- 
ment of  a  mere  legal  inference  or  conclusion.^  Thus  the  allega- 
tion of  a  duty  in  a  declaration  is  of  no  avail,  unless  the  facts 
necessary  to  raise  the  duty  are  alleged.  It  is  but  the  statement 
of  a  legal  inference  which  is  never  traversable.  And  the  defect 
is  not  cured  by  verdict,  or  by  allegation  that  the  acts  of  the 
defendants  were  done  maliciously.  The  motive  of  a  party,  for 
doing  that  which  is  not  in  itself  wrongful,  is  of  no  consequence. 
Thus,  in  a  suit  against  a  gas  company  for  shutting  off  the  gas 
from  the  plaintiff's  rooms,  the  plaintiff  alleged,  that  his  rooms 
were  furnished  with  gas-pipes  and  fixtures,  which  were  connected 
with  the  main  pipes  of  the  defendants ;  that  the  defendants  had 
for  some  time,  and  until  the  injury  alleged,  supplied  him  with 
gas,  for  which  he  had  paid  them ;  and  that  he  Avas  ready  and 
willing  to  pay  them  for  a  continued  supply  upon  which  he  was 
dependant  for  the  lighting  of  his  rooms,  and  which  he  desired 
them  to  furnish  ',  and  that  it  became  and  was  the  duty  of  the 
defendants  to  continue  to  supply  him  with  gas,  but  that  they 
maliciously  and  wantonly  shut  off  the  gas,  and  refused  to  supply 
him  ;  by  means  of  which,  he  was  deprived  of  the  means  of  light- 
ing his  rooms  with  gas,  and  put  to  great  expense  in  procuring 
other  means  of  lighting  them.  After  verdict  for  the  plaintiff, 
judgment  was  arrested,  on  the  ground  of  the  insufficiency  of  the 
declaration.  If  the  declaration  had  alleged  a  contract  to  supply 
the  plaintiff's  rooms  with  gas  until  reasonable  notice,  the  facts 
alleged  might  have  gone  to  the  jury  as  evidence  tending  to  prove 
such  a  contract.'^  On  the  other  hand,  the  law  sometimes  implies 
the  right,  for  violation  of  which  the  action  is  brought,  thereby 
dispensing  with  an  express  allegation  of  such  right.  **  It  is 
enough  to  state  the  facts  from  which  a  right  or  a  duty  arises." 
Thus  a  declaration,  that  the  defendant  wrongfully  and  improperly, 
and  without  leaving  any  proper  or  sufficient  pillars  or  supports, 
worked  coal-mines  under  and  contiguous  to  the  close  of  the  plain- 

1  Whitton  y.  Goddard,  36  Vt.  730.  Branch,    &c.,    15    Ala.    722;    Merrill   v. 

2  See  ch.  i.,  §  3  ;  Judali  v.   The  Trus-    Tlainfiekl,  45  N.  H.  126. 

tees,   &c.,   23  lud.   272;    Hardy  v.    The         ^  McCune  v.  Norwich,  &c.,  30  Conn. 

521. 


CH.  I.]  GENERAL  RULES  OF  PLEADING.  261 

tiff,  and  dug  for  and  got  and  moved  the  coals,  minerals,  earth, 
and  soil  of  and  in  said  mines,  whereby  the  soil  and  surface  of 
the  close  sank  in,  cracked,  swagged,  and  gave  way ;  need  not 
further  allege,  that  the  plaintiff  was  entitled  to  have  his  close 
supported  by  the  subjacent  strata.  ''If  the  easement,  which  the 
plaintiff  claims,  exist,  it  does  not  arise  from  any  special  grant 
or  reservation,  but  is  of  common  right,  created  by  the  law,  so 
that  we  are  bound  to  take  notice  of  its  existence."  ^  So  it  is  a 
bad  plea,  that  a  party  lawfully  enjoyed  the  goods  of  felons.^  So 
in  an  action  for  the  negligent  performance  of  duty  in  respect  to 
streets  and  sewers,  an  averment,  that  the  defendant  wrungfully 
refused  to  repair,  and  suffered,  &c.,  states  a  legal  conclusion,  and 
is  bad.^  So  a  replication  of  a  conclusion  or  inference  of  law  is 
bad  on  demurrer.'*  So,  under  the  Code  of  New  York,  the  plead- 
ings should  be  confined  to  a  simple  statement  of  facts,  without 
the  legal  conclusions  to  be  derived  from  them.  Thus  an  answer, 
that  "  the  plaintiff  was  not  the  real  party  in  interest,'*  <fec.,  pur- 
suing the  words  of  the  Code,  but  without  stating  the  facts  on 
which  the  allegation  rested,  was  held  bad  on  demurrer.^  But 
general  statements  of  facts,  and  statements  of  legal  conclusions, 
as  that  an  attachment  was  wrongfully  sued  out,  are  sometimes  held 
good,  on  general  demurrer,  or  on  an  objection  to  the  admissibility 
of  evidence,  to  prove  the  facts  from  which  the  conclusions  would 
follow.^  And  it  is  sometimes  held  necessary  to  make  use  of  a  par- 
ticular technical  term.  '•  As  a  general  rule,  it  is  inconvenient  not 
to  use  the  right  legal  word." ''  Thus,  where  a  prescriptive  right 
is  relied  on,  the  word  "  prescription  "  should  be  used  in  the  plead- 
ings.® And  argumentative  pleading  is  a  mere  formal  defect,  which 
is  aided  by  a  verdict.'-* 

1  Humphries  v.  Bro^rden,  1  Eng.  L.  &  «  Black  v.  Drury,  24  Tex.  289. 

Eq.  241  («);  per  L(l.  Campbell,  C.J.,ib.  2-42.  7  Per  Dr.  Lushington,  5  Eng.  L.  &Eq. 

a  9  Co.  25  ;  1  Ciiit.  PI.  520.  665. 

3  Montgomer}'  c.  Gilmer,  33  Ala.  116.  ^  Knapp  v.  Parishioners,  &c.,  5  Eng. 

♦  Roberts  v.  Albright,  2  Greene,  120.  L.  &  Eq.  5C)2. 

s  Russell  V.  Clapp,  7  Barb.  482.  »  The  People  v.  "Warner,  4  Barb.  314. 

{a)  This  case  is  said  to  have  been  very     vol  veil,  and  a  copious  citation  of  the  lead- 
learnedly  and  abl}^  argued,  and  contains  an     ing  authorities. 
elaborate  discussion  of  the  question    in- 


262 


PLEADING. 


[book  III. 


CHAPTER   II. 


PARTIES. 


1.  Plaintiff;  party  injured ;  legal  right. 

6.  Name  and  description. 
11.  .Joint  parties;  plaintiffs. 
20.  Joint  defendants. 


25.  Pleading  in  case  of  joinder. 
2!J.  Construction  of  statute. 
32.  Trust. 


§  1.  As  a  part  of,  or  very  closely  connected  with,  the  subject  of 
pleading,  it  seems  proper  briefly  to  notice  that  of  ijcirties}  Inas- 
much, however,  as  a  wrong  cannot  itself  be  considered,  without 
at  the  same  time  referring  to  the  parties  who  respectively  suffer 
and  commit  the  wrong;  the  topic  has  been  fully,  though  inci- 
dentally, treated,  in  the  work  to  which  the  present  is  an  ad- 
dition. 

§  2.  With  reference  to  the  plaintiff,  the  party  injured  is  the 
proper  party  to  the  suit.^  And  ''  the  general  rule  is,  that  the 
action  should  be  brought  in  the  name  of  the  party  whose  legal 
right  has  been  affected,  against  the  party  who  committed  the  in- 
jury, or  by  or  against  their  personal  representatives."  ^  (a) 


1  See  Murphy  v.  Tilly,  11  Ind.  511; 
Munch  V.  Williamson,  24  Cal.  166. 

(a)  The  owner  of  goods  injured  by  the 
negligence  of  a  carrier  should  bring  the 
action  therefor.  The  consignee  is  pre- 
sumed to  be  the  owner  ;  but  the  presump- 
tion of  ownership  may  be  rebutted. 
Cougar  V.  Galena,  17  Wis.  477. 

But,  under  some  circumstances,  the 
consli/nor,  who  owns  the  goods  and  sustains 
the  injury,  is  the  proper  party  to  an 
action  against  a  carrier.  Blumenthal  v. 
Brainerd,  38  Vt.  402. 

The  plaintiif,  a  laundress,  was  in  the 
habit  of  sending  linen  to  London  by  the 
defendant's  cart.  A  basket  of  linen  be- 
longing to  A  was  thus  sent,  and  on  the 
way  parts  of  the  contents  were  lost  or 
stolen.  A  did  not  pay  for  the  carriage. 
Held,  tlie  plaintiff  had  sufficient  title  to 
maintain  an  action  for  the  loss.     Freeman 


2  Bartges  v.  O'Neils,  13  Ohio  St.  76. 

3  1  Chit.  PI.  1. 

i\  Birch,  1  Nev.  &  M.  420;  ace.  Peoria  v. 
Mclntire,  39  111.  298. 

The  owner  of  property  constructively 
attached,  but  who  still  retains  actual  pos- 
session, may  maintain  an  action  for  its 
conversion.  Mussey  v.  Perkins,  36  Verm. 
690. 

In  a  suit  for  conversion  of  property  be- 
longing to  the  plaintiff,  the  words  "  who 
sues  for  the  use  and  benefit  of  P.  D.," 
were  inserted  after  the  name  of  the  plain- 
tiff. Held,  as  these  words  had  no  legal 
effect  on  the  rights  of  the  parties,  they 
should  be  rejected  as  surplusage.  Turner 
V.  Brooks,  G  Tex.  205.     See  §  3  b. 

The  character  in  which  a  party  sues 
must  be  determined  from  the  body  of  the 
declaration,  and  not  from  his  description 
of  himself  in  its  caption.     If,  therefore,  he 


CH.    II.] 


PARTIES. 


263 


§  3,  Where  insured  property  has  been  burned  by  the  careless- 
ness of  a  railway,  and  the  insurance  company  has  paid  tlie  loss, 


describes  himself  as  administrator  in  rijj;lit 
of  liis  wife,  anil  declares  on  a  riij;lit  of 
action  accruing;  to  liim  individaaily,  lie 
must  be  reijarded  assiiiiiL;  in  liis  individual 
capacity,  and  the  superadiled  words  must 
be  held  a  mere  (Iisrriptio  persomv ;  and 
upon  liis  death,  in  s\ich  case,  tlie  suit  siiould 
be  revived  with  tlie  name  of  his  person.-il 
representative.  Tate  v.  Shackelford,  24 
Ala.  510.  See  Gould  v.  Clap,  I'J  Barb. 
17'J. 

A  complaint,  that  a  tenant  of  the  defend- 
ant removed  a  barn  from  the  land  of  the 
plaintiff,  and  placeil  it  upon  the  land  of 
the  defendant,  and  used  and  occupied  it 
there,  and  that  the  det(?ndant  refuses  to 
deliver  the  same  to  the  i)laintifi' or  to  jier- 
mit  him  to  remove  it  upon  his  own  land, 
does  not  state  a  cause  of  action.  Tozier 
V.  Merriam,  12  Min.  87. 

An  action  for  an  injury  to  the  inheri- 
tance, in  which  the  possessor  has  no  in- 
terest beyond  the  mere  entry,  is  properly 
brought  by  the  reversioner.  Smith  v. 
Felt,  50  Barb.  til2. 

A  party  who  has  only  a  parol  license 
to  use  a  well  cannot  maintain  an  action 
against  one  who  has  rendered  the  water 
unfit  for  use.  Ottawa  v.  Thompson,  39 
III.  598. 

That  one  of  the  parties  to  an  action  of 
trespass  to  try  title  claims  under  a  deed 
alleged  to  be  void,  does  not  require  that 
the  vendor  be  made  a  i)arty.  Cox  r. 
Shropshire,  25  Tex.  113. 

orphans'  court   (penn). 

In  the  Matter  of  the  Estate  of  Lilly 
Green,  a  minor. 

Opinion  by  Brewster,  J.  —  A  petition 
was  presented  in  this  estate  by  the  aunt 
of  the  minor,  charging  tiie  guardian  with 
waste  and  mismanagement. 

The  guardian  tiled  an  answer,  denying 
the  charges,  and  challenging  the  right  of 
the  petitioner  to  iiuiuire  into  "  the  guar- 
diansiiij)  of  the  respondent." 

A  replication  and  an  additional  answer 
was  filed,  which  it  is  not  necessary  to 
notice  at  length.  .  .  . 

The  act  expressly  declares,  that  the 
removal  may  be  ordered  "  whenever  it 
shall  l)e  made  to  appear  ...  on  the  oath 
or  affirmation  of  aiij  person  interested,  that 
such  executor  ...  is  wasting  or  mis- 
managing the  property." 

What  is  meant  by  the  expression  "  anjj 
person  interested?"  Very  clearly,  all  ces- 
tuis  r/ite  trust  are  such  persons  ;  but  is  tiie 
right  of  complaint  confined  to  that  class 
alone  ?  We  must  construe  these  words  in 
the  light  of  the  necessities  of  the  case. 


The  henedictn  erpositio  should  here  be  in- 
voked, or  else  we  i)aralyze  the  arm  of 
justice.  If  we  say  that  we  will  hear  no 
comi)laint  against  a  guardian  save  from 
his  waril,  then  we  may  have  a  multitude 
of  wrongs,  and  an  absence  of  remeilies. 
Few  minors  understand  tiieir  rights ;  fewer 
still  comprehend  the  necessity  or  manner 
of  redress.  The  examiner  found  this 
minor  so  "deficient  in  mental  (jualifica- 
tions"  that  he  "declined  to  administer  an 
oath."  If  we  refuse  to  listen  to  any  per- 
son save  this  ward,  a  wrong  may  be  done 
here,  which  sliaH  be  the  i)recedent  for 
other  mismanagements,  and  we  prefer 
not  to  be  the  first  to  establish  such  doc- 
trine. 

Looking,  then,  at  the  necessities  of  the 
case,  we  hold,  that  where  the  eestnl  que 
trust  is  not  sni  juris,  and  especiidly  where 
there  is  infancy,  and  perhaps  feebleness, 
any  relative  or  friend  may  intervene  as 
amicus  curid'.  If  it  be  objected  to  this, 
that  parties  may  be  unduly  harassed  by 
impertinent  citations,  the  answer  is,  that 
the  court  must  always  protect  trustees 
from  such  annoyances,  and  that  the  risk 
of  a  decree  for  costs  will,  jierhaps,  prove 
an  eflJectual  preventive  against  groundless 
accusations. 

Finding  here  a  proper  motive  and  good 
cause  for  the  complaint,  we  sustain  this 
petition.— Legal  Intell.,  Nov.  lit,  1869. 

A  suit  in  behalf  of  minors  cannot  be 
maintained  by  one  not  a  jiarty  in  interest, 
but  who  describes  himself  as  their  guar- 
dian, when  there  is  no  averment  tiiat  they 
are  minors.  Maxedon  v.  State,  24  Ind. 
370. 

Ordinarily,  a  creditor  of  the  estate  of  a 
deceased  person  cannot  maintain  an  action 
against  a  fraudulent  vendee  of  the  de- 
ceased, to  impeach  the  sale  of  personal 
property,  over  wiiich  the  executor  or 
administrator  has  exclusive  control ;  unless 
the  executor,  &c.,  collude  with  the  vendee, 
or,  after  reasonable  request,  refuse  to  take 
proceedings  to  impeacii  the  title  and  reach 
the  property.  In  regard  to  real  estate,  as 
there  is  no  person  designated  to  set  aside 
a  fraudulent  transfer,  a  creditor  has  the 
same  privilege  that  he  has  in  regard  to 
personal  estate  where  the  executor,  &c., 
refuses  to  act.  Phelps  v.  I'latt,  50  Barb. 
430. 

The  collector,  in  possession  of  goods 
entered  at  the  custom-house,  is  not  a 
proper  party  to  an  action,  to  determine 
the  title  between  rival  claimants,  where 
there  is  no  allegation  that  he  has  acted 
wrongfully,  and  without  authority  of  law. 
Rateau  v.  Bernard,  3  Blatchf.  C.  C.  244. 


264  PLEADING.  [book   III. 

it  cannot  maintain  an  action  in  its  own  name,  but  only  in  the 
name  of  the  owner  of  the  property,  for  the  use  of  the  insurer.^ 

§  3  a.  A  receiver  of  partnership  effects  cannot  maintain  trover 
in  his  own  name  against  a  person  who  had  converted  assets  of 
the  firm  before  his  appointment.  He  must  sue  in  the  name  of  the 
firm.2 

§  3  &.  The  fact  that  a  suit  is  brought  for  the  use  of  a  third 
person  need  not  be  expressed  upon  the  record.-^ 

§  3  c.  Whether  the  action  is  brought  in  the  name  of  the  trustee 
or  the  cestui  que  trust,  is  a  matter  not  affecting  the  substantial 
rights  of  the  defendant.^ 

§  3  c?.  Under  the  Iowa  Code,  §  1676,  providing  that  civil  actions 
must  be  prosecuted  in  the  name  of  the  real  party  in  interest; 
where  a  claim  has  been  assigned,  but  not  according  to  the  provi- 
sions in  the  Code  relating  to  assignments,  the  assignor  is  still  the 
legal  party  in  interest,  and  may  sue.^  And  where  a  declaration 
in  an  action  of  trespass  commenced,  "  A  (who  sues  this  action 
for  tiie  benefit  of  B)  complains,"  &c. ;  held,  while  choses  in 
action  ex  delicto  were  unassignable,  this  statement  did  not  au- 
thorize the  presumption  of  an  assignment,  nor  of  an  agreement 
that  B  was  to  have  the  proceeds  of  the  suit,  and  a  demurrer  on 
that  ground  was  not  well  taken.^ 

§  4.  An  action  for  trespass  on  lands  alleged  to  belong  to  the 
State  was  brought  in  the  name  of  the  State  *' for  the  use  of"  a 
corporation.  Demurrer,  on  the  ground  that,  under  the  Code, 
the  action  was  not  brought  by  the  party  in  interest.  Held,  the 
words  "  for  the  use  of,"  <fec.,  were  surplusage,  and  the  demurrer 
was  overruled.'^ 

§  4  a.  An  action  in  the  name  of  the  people  requires  that  they 
have  an  interest  in  the  subject-matter.  Describing,  in  the  com- 
plaint, the  property  which  is  the  subject  of  the  action,  as  belong- 
ing to  the  city  of  New  York,  is  insufiScient.^ 

§  5.  The  legal  owner  of  real  estate,  attached  as  the  property 
of  another,  who  is  a  non-resident,  has  no  right  to  be  made  a 
defendant,   on    his    own    motion  ;    nor  is  he  a   proper  party,  in 

1  Peoria  v.  Frost,  37  111.  333.  5  State  v.  Butterworth,  2  Clarke,  158. 

2  Yeasrer  v.  Wallace,  44  Penn.  294.  ••  Blankenship  v.  Cressillas,  10  B.  Mon. 

3  American   v.    Haggard,   37  111.  465.     434. 

See  p.  262,  n.  "  State  v.  Butterworth,  2  Clarke,  158. 

*  Van  Amringe  v.   Barnett,   8  Bosw.         »  People  v.  Booth,  32  N.  Y.  397. 
357.     See  §  30. 


CH.    II.] 


PARTIES. 


265 


order  to  oust  the  court  of  jurisdiction  as  to  the  other  defend- 
aiit.i 

§  6.  In  reference  to  the  names  and  other  descriptions  of  parties 
to  a  suit,  the  rules  of  law  undoubtedly  depend  much  upon  local 
usage  and  express  statutes,  (a) 

§  7.  In  Kentucky,  in  an  action  for  injuries  caused  by  a  steam- 
boat, the  petition  named  the  master  as  a  party  defendant,  but  did 
not  designate  the  names  of  the  owners,  merely  styling  them  "  the 
owners,"  and  they  were  not  served  with  process.  Held,  the  suit 
was  against  the  master  only.^ 

§  8.  In  New  Hampshire,  where  a  tract  of  land  was  granted  by 
the  name  of  Saville  to  certain  individuals,  who  went  on  and 
divided  portions  among  themselves,  leaving  a  part  in  common  and 
undivided,  and  the  name  of  the  town  was  afterwards  changed  by 
the  legislature  to  Wendell,  and  subsequently  a  portion  of  it  was 
annexed  to  New  London,  and  the  name  Wendell  was  afterwards 
changed  to  Sunapee ;  held,  an  action  by  the  proprietors  for  the 
recovery  of  a  portion  of  the  tract  should  be  brought  in  the  name 
of  "the  proprietors  of  Saville."  ^  (6) 

3  Sunapee  v.  Eastman,  32  N.  II.  470. 


1  Loving  V.  Edes,  8  Clarke,  427. 
-  Kountz  r.  Brown,  16  B.  Mon.  577. 

(«)  An  action  against  "  P.,  I.,  and  S., 
supervisors  of  tlie  town  of  Newport,"  is  an 
action  against  them  as  private  persons. 
Tiie  addition  is  dearriptio  personarum.  Hol- 
ton  V.  Parker,  18  Minn.  383. 

In  an  action  against  the  individual 
directors  of  a  sciiool  district,  tiie  corporate 
name  being  also  given,  the  names  of  the 
directors  may  be  rejected  as  surplusage. 
Botkin  V.  Osborne,  39  III.  101. 

The  words  "county  commissioners  of 
the  county  of  Waslioe,"  after  the  names 
of  tlie  defendants,  do  not  make  the  county 
a  defendant.  Champion  v.  Sessions,  1 
Nev.  478. 

Where,  in  tlie  title  of  a  cause,  the  de- 
fendant was  designated  as"  T.,  agent  for 
and  one  of  the  members  of  a  company 
trading  in  tliis  territory,  mider  tlie  name 
and  st3'le  of  the  P.  Agricultural  Com- 
pany ;  "  held,  the  statement  was  only  as  a 
description  of  the  person  of  the  defendant, 
not  an  allegation  of  membership  of  the 
comi)any  and  consequent  liability.  A 
complaint,  alleging  a  contract  between  the 
plaintifl'  and  the  "  P.  Agricultural  Com- 
pany," and  a  liability  on  the  part  of  the 
company,  without  any  averment  as  to  the 
members,  or  that  it  was  incorporated,  is 
bad.     Tolmie  v.  Dean,  I  Wash.  Terr.  57. 


In  an  action  for  the  wrongful  taking  of 
personal  property,  the  defendants,  sued  in 
their  personal  characters,  denied  the  plain- 
tifi''s  ownership,  and  alleged  title  in  them- 
selves, and  also  that  they  took  ])ossession 
as  administrators.  Held,  the  latter  de- 
fence was  consistent  with  the  previous 
one,  and  relevant,  under  the  (N.  Y.) 
Statute  (Laws,  1868,  c.  314,  §  1).  Bryant 
V.  Bryant,  2  Hob.  (N.  Y.)  612. 

The  rule,  that  possession  is  prima  facie 
evidence  of  title,  has  no  ai)])lication  to 
pleading.  Meriden  v.  Whedon,  31  Conn. 
118. 

In  a  complaint,  where  the  title  gives  the 
names  of  the  plaintifls,  as  "  connnissioners 
of  highwaj's,"  and  the  body  of  the  com- 
plaint alleges  that  "  the  plaintiffs,  connnis- 
sioners  of  highways,  comjilain ;  ''  the 
character  in  wliich  they  complain  is  suffi- 
cientlv  indicated.  Fowler  v.  Westervelt, 
40  BaVb.  874. 

(b)  "  Had  the  limits  of  the  original  grant 
never  been  changed,  jierhaps  there  would 
be  no  great  difficulty  in  holding  that  tiie 
action  coiddbe  maintained  under  the  new 
name,  on  the  ground  that  it  is  the  same 
territory.  ..."  But  a  part  of  it  having 
been  annexed  to  New  London,  the  pro- 
prietors of  Sunapee  are  not  the  proprietors 


266  PLEADING.  [book   III. 

§  9.  In  New  York,  the  plaintiff  sued  a  constable  to  recover  a 
horse,  seized  by  virtue  of  an  execution  against  A,  who  had  pos- 
session. The  plaintiff  in  the  execution  was,  on  his  own  motion, 
made  a  defendant.^ 

§  10.  The  allegation  in  a  complaint,  that  the  defendant,  being  a 
canal  commissioner,  was  bound  to  repair  the  banks  of  the  Erie 
canal,  at  a  certain  place,  in  a  division  placed  under  his  particular 
supervision,  is  sufficient  to  show  that  the  action  is  brought  against 
him  in  his  private  character ;  and  it  was  not  necessary  to  allege 
that  he  had  in  his  hands  funds  sufficient  to  make  the  repairs,  for 
not  making  which  the  action  was  brought.^ 

§  11.  The  question  of  joint  parties  is  one  of  very  frequent 
occurrence.^  (a) 

§  12.  In  an  action  of  waste  for  injuries  to  the  estate  of  a  mar- 
ried woman,  her  husband  must  join.^  (6)     (See  §  15  a.) 

§  12  a.  Petition  by  husband  and  wife,  alleging  that  the  defend- 
ant had  by  misrepresentation  and  deceit  induced  the  husband  to 
pay  the  defendant  $1300  for  a  tract  of  land  worth  only  $100,  and 
that  the  land  was  conveyed  to  the  wife ;  and  claiming  judgment 
for  $1200  damages,  as  the  amount  of  injury  sustained.  Demurrer 
to  the  petition,  as  not  stating  facts  sufficient  to  constitute  a  cause 
of  action.  The  demurrer  being  overruled,  held,  such  overruhng 
was  erroneous,  as  the  petition  showed  no  joint  cause  of  action. 
Also,  as  judgment  was  rendered  in  favor  of  both  plaintiffs,  and 

1  Conklin  v.  Bishop,  3  Diier,  646.  See  Pelberg  v.  Gorham,  23  Cal.  349  ;  Fritz  v. 
Davis  V.  Tlie  Mayor,  &c.,  2  ib.  663.  Fritz,  23  Ind.  388 ;  10  Allen,  460. 

2  Gritfith  V.  Follett,  20  Barb.  620.  4  Thacher  v.   Phinney,  7  Allen,  146. 

3  See  Herron  v.  Hughes,  25  Cal.  560;  See  Lewis  v.  M'Natt,  65  N.  C.  63. 

of  Saville,  but  only  the  proprietors  of  a  against  several,  there   cannot   be  a  ver- 

part  of  it ;  and  where  towns  are  divided  diet  for  any  of  them,  until  the  case  for  the 

into  two  or  more,  or  where  portions  of  plaintiff  is  finally  closed  by  the  complete 

them  are  taken  off  and  annexed  to  adjoin-  examination  of  all  his  witnesses,  nor  so 

ing  towns,  ...  it  would  evidently  lead  long  as  the  cross-examination  of  any  of 

to  much  confusion,  if  not  to  difficulties  them  is  reserved.     Sinch  v.  Champion,  1 

that  could  not  easily  be  remedied,  to  hold  F.  &  F.  416. 

that  actions  like  the  present  should  be  (6)  Where  a  wife  owns  with  others  a  re- 
brought  in  the  name  of  the  new  town,  version,  the  husband,  surviving  her,  may 
If  the  town  be  equally  divided,  in  which  unite  with  the  other  owners  in  an  action 
name  should  the  action  be  brought  ?  The  for  an  injury,  and,  if  tlie  declaration  states 
grant  being  to  the  proprietors  and  their  the  interest  in  the  property  to  be  his,  and 
heirs,  it  would  seem  that  the  action  must,  the  injury  done  to  his  property,  and  not 
in  such  a  case,  be  brought  in  their  original  that  the  cause  of  action  accrued  to  him  in 
name,  or  in  both."  Per  Eastman,  J.,  any  other  manner,  the  addition  of  the 
32  N.  H.  473.  words  "  administrator  of  his  wife  "  will  be 
(a)  See  Hilliard  on  Torts,  c.  33.  In  mere  descn'ptio  personce.  Harvey  v.  Skip- 
a  late  case  it  is  held,   that,  in  trespass  with,  16  Gratt.  393. 


CH.    II.]  PARTIES.  267 

the  record  did  not  show  but  that  the  defendant  was  thereby 
prejudiced,  the  judgment  should  be  reversed. ^  (a) 

§  13.  An  allegation,  that  one  plaintiff  holds  the  property  in 
his  own  name  for  the  "joint  use  and  benefit"  of  himself  and 
the  other,  sufficiently  shows  an  interest  in  the  latter,  to  make  him 
a  necessary  party .^ 

§  14.  In  Pennsylvania,  an  action  for  the  loss  of  a  child,  killed 
by  the  negligence  or  misconduct  of  a  railroad  company,  is  properly 
brought  in  the  name  of  both  parents.^  • 

§  15.  Two  persons,  A  and  B,  in  joint  possession,  and  claiming 
to  be  joint  owners  of  wood,  cut  upon  land  which  was  originally 
owned  by  A,  may  maintain  a  joint  action  against  a  wrong-doer  for 
its  conversion,  although  no  deed  of  conveyance  of  the  land  from 
A  to  B  is  proved."^ 

§  15  a.  All  the  owners  of  the  land  must  join  in  an  action  of 
tort  in  the  nature  of  waste.^     (See  §  12.) 

§  15  b.  Where,  in  an  action  brought  by  two  or  more  persons 
for  an  unlawful  taking  of  property,  the  defendant  answers,  that 
the  plaintiffs  are  not  joint  owners  ;  that  averment  is  material,  and 
is  new  matter,  requiring  a  reply.  Such  an  allegation  falls  directly 
within  the  provision  of  §  144  of  the  New  York  Code  of  Procedure, 
and,  if  not  specifically  controverted  by  the  reply,  it  will  be  taken 
as  true  ;  no  evidence  will  be  required  to  establish  it,  and  no  evi- 
dence will  be  admissible  to  contradict  it ;  nor  will  such  evidence 
be  of  any  avail,  if  admitted,  unless  it  clearly  appears  that  the 
defendant  waives  his  rights  under  the  pleadings ;  and  the  admis- 
sion of  such  improper  evidence  in  contradiction,  without  objec- 
tion, is  not  conclusive  evidence  of  such  waiver.'^ 

§  16.  One  of  two  reversioners  may,  during  the  continuance  of 
the  particular  estate,  maintain  an  action  on  the  case  for  an  injury 
to  the  reversion,  recovering  only  a  moiety  of  the  damages,  unless 

1  Bartgcs  v.  O'Neils,  13  Ohio  St.  72.  <  Parker  v.  Parker,  1  Allen,  245. 
See  Chase  v.  Chase,  6  Gray,  157.                        5  Bullock  v.  Ilayward,  10  Allen,  460. 

2  Hawke  v.  Banning,  3  Min.  67.  «  Walrod  v.  Bennett,  6  Barb.  144. 

3  Pennsylvania,  &c.  v.  Zebe,  37  Penn. 
420. 

(a)  In  this  case  it  was  remarked  :  "  At  if  judgment  in  such  a  case  should  be  en- 
common  law,  if  the  wife  improj)erly  join  in  tered,  if  the  objection  appeared  upon  the 
action  with  her  husband,  who  ought  to  sue  record,  the  same  would  constitute  good 
alone,  the  defendant  miglit,  for  that  cause,  cause  for  a  reversal  of  the  judgment  on  a 
demur  to  the  declaration,  or  the  same  writ  of  error."  Per  Sutliff,  C.  J.,  Bartges 
might  be  taken  advantage  of  after  verdict,  v.  O'Neils,  13  Ohio  St.  70. 
as  a  good  cause  for  arrest  of  judgment ;  or 


268  PLEADING.  [book   III. 

non-joinder  be  pleaded  in  abatement.^  So  one  carrying  on  busi- 
ness in  her  own  name,  and  in  possession  of  goods,  and  claiming 
to  own  tliem,  may  recover  of  a  railroad  for  their  loss,  although  a 
third  person  is  also  interested  in  the  business.^  So  a  miller,  em- 
ployed by  the  owner  of  a  mill  to  take  charge  of  and  tend  the 
mill,  receiving  in  compensation  half  the  profits,  but  without  agree- 
ment for  any  definite  time,  has  no  such  title  or  possession  as  to 
require  him  to  be  joined  in  an  action  by  the  owner  for  an  injury 
to  the  mill.  ''  The  plaintifi"  is  to  be  taken  to  have  been  in  the  legal 
possession  of  the  mill,  and  Butterworth  in  his  employment  as  his 
miller,  under  an  agreement  that  he  should  have  one-half  the  earn- 
ings of  the  mill  for  tending  the  same.  Butterworth  was  miller 
to  the  plaintiff  and  not  lessee  of  the  mill.  There  was  no  lease, 
no  agreement  for  any  particular  time  in  which  Butterworth  was 
to  be  employed  in  the  mills,  or  have  any  interest  in  the  mills,  or 
have  any  interest  in  the  income  of  them."  ^ 

§  17.  Where,  in  a  lease,  there  is  a  reservation  of  a  portion  of 
the  crops,  the  general  property  and  right  to  them  remain  in  the 
landlord,  the  tenant  acquiring  neither  the  ownership  nor  the  right 
to  sell ;  but,  while  the  tenant  retains  possession  of  them,  he  is  a 
tenant  in  common,  and  must  join  with  the  landlord  in  an  action 
for  an  injury  to  them."*  Otherwise,  if  he  abandon  the  posses- 
sion or  assent  to  a  sale  of  his  interest,  and  relinquish  further 
claim. ^ 

§  18.  In  New  York,  the  owner  in  fee  may  maintain  an  action 
for  the  cutting  of  timber  on  the  land,  without  joining  the  tenant 
for  life  or  for  years  as  plaintifi".  The  latter  may  bring  a  separate 
action.^ 

§  19.  In  New  York,  when  two  or  more  join  in  bringing  an  ac- 
tion, and  the  facts  alleged  do  not  show  a  joint  cause  of  action,  a 
demurrer  lies,  upon  the  ground  that  the  complaint  does  not  state 
facts  sufficient  to  constitute  a  cause  of  action.  So  when  husband 
and  wife  are  joined  as  plaintiSs,  or  the  complaint  shows  that  one 
alone  must  sue.'  (a) 

1  Putney  v.  Lapliam,  lOCush,  232.  ^  Van  Deusen  v.  Young,  29  N.  Y.  (2 

2  Mayall  v.  Boston,  &c.,  19  N.  H.  122.  Tiffa.)  9. 

3  Chandler  v.  Howland,  7  Gray,  348  ;  7  Mann  v.  Marsh,  35  Barb.  68,  (distin- 
per  Dewey,  J.,  ib.  351.  guished  by  the  court  from  the  previous 

•*  Hatch  V.  Hart,  40  N.  H.  93.  cases  of  Brumskill  v.  James,  1  Kern.  294  ; 

5  lb.  and  Sliumway  u.  Cooper,  decided  in  1856). 

(a )  In  actions  for  trespass  to  lands,  ten-    ment,  or  by  apportionment  of  the  damages, 
ants  in  common  must  join ;  but  non-joinder     Gent  v.  Lynch,  23  Md.  58. 
can  be  objected  to  only  by  plea  in  abate-        A  complaint  may  state  that  "  B,  who 


CH.    II.]  PARTIES.  269 

§  20.  With  reference  to  the  joinder  oi  defendants ;  in  an  action 
on  the  case  against  several  as  carriers  of  passengers,  by  whose 
neglect  the  plaintiff  has  received  injury,  the  plaintiff  need  not 
prove  that  all  were  owners  of  the  line,  but  may  recover  against 
such  as  he  can  prove  to  be  owners  and  guilty  of  the  alleged 
wrong.  The  court,  in  this  case,  give  the  following  summary  of 
the  distinction,  as  to  joinder  of  defendants,  between  tort  and  con- 
tract: "  The  declaration  is  founded  upon  the  common  law  regulat- 
ing common  carriers  ;  and  this  law  imposes  a  duty  upon  them 
by  reason  of  their  calling,  from  considerations  of  public  policy, 
and  without  regard  to  contract.  It  is  true,  that  the  law  presumes 
or  implies,  from  the  fact  of  receiving,  as  common  carriers,  the 
passenger  to  carry  for  hire,  a  contract.  But  the  plaintifi'  had  his 
election  to  sue  in  assumpsit,  declaring  upon  the  contract,  express 
or  implied,  or  in  case,  for  tort,  declaring  upon  the  breach  of 
duty  imposed  by  the  law.  ...  It  is  urged,  as  the  declaration 
alleges,  that  all  of  the  defendants  were  joint  proprietors ;  unless 
this  be  proved,  the  allegata  and  probata  do  not  correspond,  and 
the  plaintiff  must  therefore  fail.  This  would  be  true  were  the 
contract  declared  on,  or  were  it  the  substance  of  the  cause  of 
action,  .  .  .  There  is  a  class   of  cases   arising  out  of  contract, 

has  an  interest  in  common  with  persons  The  fact   that  one  of  tlie  jjhiintiffs,  a 

whom  it  would  be  impracticable  to  bring  mere  nominal  party,  is  a  jjublic  enemy,  is 

before  the  court  on  account  of  their  great  no  ground  for  dismissing  the  petition  of 

number,  and  wlio  sues  for  the  benefit  of  the  only  beneficial  plaintifi',  who  is  not  an 

the  whole,  complains."     Sourse  v.  Mar-  enemy.      Hoskins    v.    Gentry,    2   Duv. 

shall,  -23  Ind.  1U4.                                      _  285. 

AVhere  several    legatees   give    a  joint  The  sureties  of  a  sheriff,  who  have  paid 

power  of  attorney  to  a  party  to  collect  a  judgment  against   him  for  a  wrongful 

their  property,  and  he  fails  to  pay  it  over,  levy,    may    jointly   recover   the  amount 

each  may  maintain  a  several  action,  and  against  the  execution  creditor,  to  whom 

■without  demand.     Power  w.  Hathaway,  43  tiie  sheriff  delivered  the  property  levied 

Barb.  214.  upon.     Skifi'y.  Cross,  21  Iowa,  4.59. 

Misjoinder  of  plaintifis,  which  does  not  A   complaint   in  an   action  by  several 

appear  ui)on   the  face  of  the  complaint,  plaintifis,  that  the  defendant  took  "  cer- 

must  be  objected  to  by  answer.     Hastings  tain  goods,   &c.  of  and  belonging  to  the 

V.  Stark,  'dij  Cal.  122.  said  plaintiffs,"  does  not  aver  joint  owtx-r- 

Partners  cannot  join  in  an  action  to  re-  s/)//» ;  but  would  be  sustained  by  proof  that 
cover  their  shares  of  projjcrty  from  anotiier  they  owned  as  partners,  ])art-owners,  or 
p.artner  alter  dissolution.  ]\Iasters  f.  Pree-  tenants  in  common,  and  unequally.  Pel- 
man,  17  Ohio  St.  323.  berg  v.  Gorham,  23  Cal.  34U. 

An  attaching  creditor  cannot  join  with  An  action  against  a  railroad,  for  negli- 

the    sherilf  in    trover   for   the   property,  gence  in  causing  the  dcatii  of  a  father,  is 

Schaefier  v.  Marienthal,  17  Ohio  St.  183.  properly  brougiit  in  the  name  of  all  the 

Several  siu-eties  cannot  maintain  a  joint  children;  the  recovery  is  for  the  benefit 

action  on  the  case  for  aiiling  their  princi-  of  all,  the  amount  to  be  distributed  as  in 

pal  fraudulently  to  conceal  or  transfer  his  case  of  intestacy.     There  can,  under  the 

property,  even   if,  since  tlie  acts  charged,  statvUe,  be  a  joint  recovery,  without  show- 

they  have  given  a  joint  note  to  take  up  ing  a  joint  damage.     North  v.  Robinson, 

the  original  note.     Bunker  v.  Tufts,  65  44  Penn.  175. 
Maine,  180. 


270  PLEADING.  [book   III. 

where,  by  reason  of  the  contract,  the  law  raises  a  duty,  for  the 
breach  of  which  duty  an  action  on  the  case  may  be  roaintained  ; 
and  in  such  cases,  the  contract  being  the  basis  and  gravamen  of  the 
suit,  must  be  alleged  and  proved.  Where,  too,  from  the  facts  the 
duty  arises,  and  there  is  also  a  contract  which  is  alleged  and  made 
the  substance  and  gist  of  the  cause  of  the  action,  although  the 
action  be  case,  it  being  substantially  founded  upon  contract,  the 
rights  of  the  parties  will  be  governed  by  the  law  of  contract."  ^ 
So  in  an  action  on  the  case  against  owners  of  a  steamboat,  for  the 
loss,  by  negligence,  of  a  slave  of  the  plaintiff  hired  to  the  defend- 
ants ;  non-joinder  of  a  part  of  the  owners,  or  joinder  of  those 
not  owners,  will  not  affect  the  plaintiff's  right  to  recover  against 
those  properly  made  defendants.^ 

§  21.  One  injured  by  the  concurrent  negligence  of  two  persons 
may  maintain  a  joint  action  against  them.  Thus  where  the  trains 
of  two  companies  using  the  same  track  come  in  collision,  an  action 
is  maintainable  against  them  jointly  for  injuries  incurred.  "  Had 
the  collision  set  in  motion  a  third  body,  which  in  its  movement  had 
come  in  contact  with  and  produced  the  same  injury  to  the  plain- 
tiff, no  good  reason  can  be  assigned  against  their  joint  liability ; 
such  a  case  is  in  principle  like  the  one  under  consideration."  ^ 

§  22.  Declaration,  that  the  defendants  were  owners  of  a  coal 
mine,  and  the  plaintiff  was  employed  by  them  as  a  collier  in  the 
mine,  and  in  the  course  of  his  employment  it  was  necessary  for 
him  to  descend  and  ascend  through  a  shaft  constructed  by  them ; 
that,  by  their  negligence,  the  shaft  was  constructed  unsafely,  and 
was,  by  reason  of  not  being  sufficiently  lined  or  cased,  unsafe, 
which  they  well  knew  ;  and  by  reason  of  the  premises,  and  also 
by  reason,  as  they  well  knew,  of  no  sufficient  or  proper  apparatus 
having  been  provided  by  them  to  protect  the  plaintiff  from  inju- 
ries arising  from  the  unsafe  state  of  the  shaft,  a  stone  fell  from  the 
side  of  the  shaft  on  his  head,  and  he  was  dangerously  wounded. 
Plea,  not  guilty.  It  was  proved  that  A,  one  of  the  two  defend- 
ants, was  manager  of  the  mine,  and  that  it  was  worked  under  his 
personal  superintendence  ;  and  that  the  plaintiff  was  not  aware 
of  the  state  of  the  shaft.  The  jury  found  that  the  defendants 
were  guilty  of  personal  negligence.     Held,  on  motion  to  enter  a 

1  Frink  v.  Potter,  17  111.  406  ;  per  Skin-  3  Colesjrove  v.  New  York,  &c.,  20  N.  Y. 
ner,  J.,  ib.  411.  (6  Smitlif  492 ;  per  H.  Gray,  J.,  ib.  493. 

2  Swigert  v.  Graham,  7  B.  Mon.  661. 


CH.    II.]  PARTIES.  271 

nonsuit,  that  on  this  finding  A  was  liable,  and  therefore  the  other 
defendant  was  liable  also.  Also,  on  motion  in  arrest  of  judgment, 
that  the  declaration  must  be  taken  to  allege  personal  knowledge 
in  the  defendants  of  tiie  state  of  the  shaft,  and  therefore  the  action 
was  maintainable.^ 

§  23.  In  a  late  case  an  action  was  brought  for  injury  sustained 
by  the  falling  of  a  party-wall,  erected  on  the  dividing  line  between 
two  lots,  owned  respectively  by  the  defendants.  In  giving  judg- 
ment for  the  plaintiff  the  court  remark  :  "  The  maintenance  of 
an  insecure  party-wall  was  a  tort  in  which  they  were  both  partici- 
pants. The  act  was  single,  and  it  was  the  occasion  of  the  injury. 
The  case  is  not  to  be  confounded  with  actions  of  trespass  brought 
for  separate  acts  done  by  two  or  more  defendants.  Then,  if  there 
has  been  no  concert,  no  common  interest,  there  is  no  joint  liability. 
Here,  the  keeping  of  the  wall  safe  was  a  common  duty,  and  a 
failure  to  do  so  was  a  common  neglect."  ^  So  a  joint  action  lies 
against  two  towns  bound  to  support  a  bridge.^ 

§  24.  But  where  a  complaint  was  brought  against  two  defend- 
ants, that  one  of  them  erected  a  stone  building  across  an  alley, 
obstructing  the  plaintiff's  right  of  way  ;  and  that  possession  of  the 
building  was  then  transferred  by  one  defendant  to  the  other,  who 
continued  such  obstruction :  held  ground  for  a  separate  but  not 
a  joint  action,  and  that  the  causes  of  action  were  improperly 
united.  Also,  that  the  objection  of  misjoinder  might  be  made  by  a 
joint  demurrer.'*  So  case  for  deceit  in  the  nature  of  a  conspiracy 
can  only  be  sustained,  where  some  affirmation  or  representation, 
wilfully  false,  or  some  designed  and  positively  fraudulent  artifice, 
is  directly  proved,  or  necessarily  to  be  presumed  from  the  circum- 
stances attending  the  transaction  itself,  to  have  been  made  or  per- 
petrated by  the  defendants  jointly,  by  means  whereof  a  damage 
resulted  to  the  plaintiff.  Thus  it  cannot  be  sustained  against  a 
principal  and  his  agent,  jointly,  for  the  unauthorized  fraudulent 
acts  and  representations  of  the  agent  alone.^ 

§  25.  The  general  issue,  in  tort,  is  regarded  as  several,  though 
in  form  joint.*^ 

§  2t).  If  two  defendants,  in  trespass  and  ejectment  for  land,  join 

>  Mellors  v.   Shaw,  1  Best  &  Smith,         *  Hess  v.  Buffalo,  &c.,  20  Barb.  391. 
437.  s  Page  V.  Parker,  40  N.  H.  47.    See  p. 

-  Per  Strong,  J.,  Klander  v.  M'Grath,  272,  n.  (</). 
35  Penn.  V2'J.  6  Downer  v.  Flint,  2  Wins.  527. 

"*  Peckham  r.  Burlington,  Brayt.  184. 


272 


PLEADING. 


[book   III. 


in  pleading  the  general  issue,  evidence  of  title  in  one  is  a  good 
defence  for  both.^ 

§  27.  An  allegation  of  a  joint  freehold,  in  a  notice,  filed  with  a 
plea  of  the  general  issue  in  trespass,  does  not  admit  evidence  of 
a  several  freehold  in  each  defendant.^ 

§  28.  In  trespass  de  bon.  aspor.  against  several,  they  filed  a 
special  plea  of  justification,  admitting  that  all  took  and  carried 
away  the  property  and  converted  it  to  their  own  use,  but  failed  to 
make  good  their  plea.  Held,  all  were  bound  by  the  admission, 
though  there  was  no  evidence  of  the  taking,  &c.,  as  to  some  of 
them.^ 

§  29.  In  the  New  York  Code,  §  136,  subd.  2,  the  words,  "  defend- 
ants severally  liable,"  refer  to  all  the  defendants  served,  although 
jointly  liable,  if,  as  between  them  and  other  defendants  not  served, 
the  liability  is  several,  as  well  as  to  the  case  where  each  and  all 
are  severally  liable.*  (a) 

§  30.  ''  A  cestui  que  trust,  or  other  person  having  only  an  equi- 
table interest,  cannot  in  general  sue  in  the  courts  of  common  law, 
against  his  trustee,  or  even  a  third  person,  unless  in  cases  where 


i  Tripp  V.  Ide,  3  R.  I.  51. 

2  Williams  v.  Holmes,  2  Wis.  129. 

3  Norris  v.  Norton,  19  Ark.  319. 

(a)  A  joint  action  will  lie  against  prin- 
cipal and  agent,  for  a  personal  injury 
caused  by  the  negligence  of  the  latter  (in 
the  absence  of  the  former),  in  the  course 
of  his  employment.  Phelps  v.  Wait,  30 
N.  Y.  78.     See  §  24. 

All  parties,  necessary  to  complete  relief, 
are  proper  defendants.  Eastman  v.  St. 
Anthony,  12  JNIinn.  137. 

Under  the  (Conn.)  Flo  wage  Act  (Rev. 
1866,  p.  89),  a  petition  may  include  all 
persons  as  respondents  who  have  lands 
that  will  be  overflowed  by  the  proposed 
pond.  So,  although  one  resides,  and  his 
land  lies,  out  of  the  county  in  which  the 
suit  is  brought.  Todd  v.  Austin,  33 
Conn.  87. 

An  action  for  a  joint  trespass  cannot  be 
sustained  by  evidence  of  acts  committed 
by  one  defendant.  Davis  v.  Caswell,  50 
Maine,  294. 

In  an  action  by  a  stockholder  against 
the  directors  of  a  corporation  for  fraudu- 
lently misapplying  its  property,  and  for 
injury  done  to  the  corporation  by  the 
embezzlement  of  its  assets,  he  must  make 
the  corporation  a  party.  Where  such 
action  seeks  to  charge  the  defendants  as 
trustees,  a  third  person,  who  combined 


4  Pruyn  v.  Black,  19  N.  Y.  (7   Smith) 


300. 


with  them,  cannot  be  made  a  defendant. 
Gardiner  v.  Pollard,  10  Bosw.  G74. 

In  an  action  of  tort,  non-joinder  of  de- 
fendants is  no  defence.  Milford  v.  Hoi- 
brook,  9  Allen,  17. 

For  a  personal  injury  received  through 
the  negligence  of  several  persons,  there  is 
a  separate  as  well  as  joint  liability.  Creed 
V.  Hartmann,  29  N.  Y.  (2  Titfa.)  591. 

A  party  is  not  precluded  from  recovery 
against  one  joint  tort-feasor  by  showing 
that  others  have  borne  a  share  in  it.  All 
torts  by  several  persons  are  joint  or  several 
at  the  election  of  the  injured  party,  though 
but  one  satisfaction  can  be  recovered,  and 
there  is  no  contribution  among  tort- 
feasors.   North  V.  JNIahoney,  57  Penn.  187. 

W.,  H.,  and  B.,  trustees  of  a  school  dis- 
trict, employed  L.  to  teach  a  school  for 
four  months,  at  $45  a  month.  After  his 
teaching  faithfully  for  three  weeks,  B.  and 
H.  sent  a  written  notice  to  L.  to  discon- 
tinue the  school,  for  the  reason  that  his 
"  price  was  too  high,  and  through  the  com- 
mon rumor  of  the  cliildren."  In  an  action 
of  tort  by  L.,  for  wrongful  ejection  ;  held, 
W.  was  not  a  necessary  party.  Hill  v. 
Harris,  4  Bush,  450. 


CH.    II. J  PARTIES.  273 

the  action  is  against  a  wrong-doer,  and  for  an  injury  to  the  actual 
possession  of  the  cestui.'"  ^ 

§  31.  Where  one  conveys  personal  property  in  trust  for  the 
payment  of  a  debt,  and  afterwards  conveys  tlie  same  property 
directly  to  the  creditor,  the  legal  title  is  in  tlie  trustee,  and  suit  ia 
properly  brought  against  one  in  possession  in  the  name  of  the 
trustee.^ 

§  32.  A  executed  a  deed  of  slaves  to  trustees  for  the  benefit  of 
himself  and  wife  during  their  lives,  and,  after  their  deaths,  to  be 
divided  among  their  children.  A  remained  in  possession  of  the 
slaves,  removed  to  Missouri,  and  sold  two  of  them  to  the  defend- 
ant, who  had  notice  of  the  deed.  After  the  death  of  A  and  wife, 
the  children  brought  a  suit  for  the  slaves.  Held,  the  suit  could 
not  be  sustained  ;  it  should  have  been  brought  in  the  name  of  the 
trustees,  or  their  successors.^ 

1  1  Chit.  PI.  48.  3  Gibbons  v.  Gentry,  20  Mis.  468. 

2  Bergescli  v.  Keevil,  19  Mis.  127. 


18 


274 


PLEADING. 


[book  III. 


CHAPTER    III. 


THE   GENERAL   ISSUE   AND    SUBSEQUENT   PLEADINGS. 


1.  As  a  defence  to  the  action. 
4.  In  miti^ntion  of  damages. 
6.  What  shidl  be  construed  as.  a  denial; 
implied  admissions. 


8.  Miscellaneous  points. 
11.  Replication,  &c. 


§  1.  It  will  be  seen  hereafter,  in  connection  with  particular 
forms  of  action,  and  actions  for  particular  wrongs,  what  defences 
may  be  offered  under  the  various  pleas  known  to  the  law  ;  more 
especially  the  plea  of  the  general  issue  or  not  guilty.  A  few  gen- 
eral points  may  properly  be  stated  in  the  present  connection. 

§  2.  It  is  laid  down,  as  the  general  rule,  that,  in  actions  ex 
delicto,  matters  in  justification  may  be  offered  under  the  general 
issue. 1  (a)    That  special  matters  may  be  given  in  evidence  under 

1  Collins  V.  Bilderback,  5  Harring.  133. 


[a)  Under  a  general  denial,  evidence 
tending  to  disprove  a  material  allegation 
is  competent ;  but  not  to  sustain  an  inde- 
pendent substantive  matter  of  defence  not 
involved  in  the  pleadings.  Ward  v. 
Bartlett,  12  Allen,  419. 

In  an  action  for  an  injury  caused  by  in- 
sufficiency of  a  highway,  the  plaintiff  must 
show  that  he  gave  to  the  selectmen  tlie 
notice  required  by  (Verm.)  Gen.  Sts. 
c.  25,  §  42,  and  therefore  the  defendant 
may  under  the  general  issue  disprove 
such  notice.  Matthie  r.  Barton,  40  Vt.  286. 

In  an  action  on  the  case  for  an  injury  to 
land,  it  is  not  necessary  to  plead  specially. 
Evidence  that  the  acts  were  done  by  the 
plaintiff's  permission  is  admissible  under 
the  general  issue,  and,  a  fortiori,  that  they 
were  done  by  his  direction.  Hills  v. 
Boston,  18  N.  H.  179. 

The  defence  of  infancy  is  admissible 
under  the  general  issue.  Thrall  v.  Wright, 
38  Vt.  494. 

Under  a  denial  of  the  allegations  of  the 
petition,  evidence  is  admissible,  that  a 
sale  under  which  the  plaintiff  claims  was 


fraudulent  and  void.  Greenway  v.  James, 
34  Mis.  326. 

Where  a  contract  is  against  public  policy 
and  void,  and  the  defendant  pleads  such 
illegality,  a  reconventional  demand,  alleg- 
ing that,  if  such  contract  is  valid,  the 
plaintiff  is  indebted  to  the  defendant  under 
it,  does  not  render  such  plea  ineffective. 
Coppell  V.  Hall,  7  Wall.  542. 

A  denial  in  the  answer,  that  any  war- 
rants were  committed  to  an  officer,  author- 
izes proof  that  warrants  so  committed  are 
void  upon  their  face.  Williamstown  v. 
Willis,  15  Gray,  427. 

A  specific  denial  of  all  the  material 
allegations  in  a  complaint  is  a  denial  of  the 
plaintiff's  right  of  action.  Bailey  v.  War- 
ren, 1  Greg.  357. 

A  general  denial  under  the  (Kans.)  Code 
is  equivalent  to  the  general  issue  at  com- 
mon law,  and  traverses  every  material 
allegation  of  the  petition,  and  puts  the 
plaintiff  upon  the  jiroof  of  his  cause  of 
action.     Perkins  r.  Ermel,  2  Kans.  325. 

Where  the  allegation  in  a  complaint 
was,  that  the  "  plaintiff  has  been  and  still 


CH.    III.]  GENERAL   ISSUE   AND   SUBSEQUENT    PLEADINGS.  275 

the  plea  of  not  guilty  ;  though  it  would  be  more  in  harmony  with 
the  general  system  of  practice,  to  plead  such  matters  specially.^ 
Thus,  in  an  action  on  the  case,  though  for  a  tort,  the  defendant 
may  justify  under  the  general  issue.^  So  accident  may  be  offered 
in  defence  under  the  general  issue.'^  So,  in  an  action  on  the  case 
for  beating  the  plaintift''s  horse,  the  defendant  may  show,  under 
the  general  issue,  that  it  was  done  to  drive  the  horse  from  his 
own  door,  which  he  obstructed.^ 

§  3.  But  it  is  also  held,  that  new  aflSrmative  matter  of  avoid- 
ance or  defence  cannot  be  given  in  evidence  under  a  general  or 
special  traverse,  but  must  be  specially  pleaded,''  And  that,  in 
actions  for  torts,  matters  in  discharge  or  justification  of  the  action 
must  be  specially  pleaded,  and  cannot  be  given  in  evidence  under 
the  general  issue.*^  Thus  a  defendant  in  trespass  cannot  show 
that  the  plaintiff  has  assigned  his  action,  nor  any  interest  in  it, 
without  having  alleged  the  fact  in  his  answer."  So  a  defence 
based  upon  fraud,  to  be  admissible  in  evidence,  must  be  specially 
pleaded.*'  So  in  a  suit  to  recover  possession  of  household  furni- 
ture, under  a  general  denial,  evidence  is  not  admissible  that  the 
property  belongs  to  another.^  And  where  notice  is  by  statute  sub- 
stituted for  a  special  plea,  fraud  cannot  be  set  up  to  invalidate  a 
contract,  under  the  general  issue,  without  notice,  being  consist- 
ent with  the  existence  in  fact  of  the  contract,  and  therefore 
matter  of  avoidance  within  the  terms  of  a  statute. ^"^  (a) 

1  Hunt  V.  Turner,  9  Tex.  385.  6  Halin  v.  Rittcr,  VI  111.  80. 

2  Rust  V.  Flowers,  1  Uar.  475.  7  Goetz  v.  Ambs,  27  Mis.  28. 

3  Gault  V.  Humes,  20  Md.  304.  8  Fankboner  v.  Fankboncr,  20  Ind.  62. 
*  Slater  v.  Swann,  2  Str.  872.  9  Draper  v.  Richards,  20  La.  An.  306. 
5  Marley  v.  McAnelly,  17  Tex.  658.  i«  Hoxie  v.  Home,  &c.,  32  Conn.  22. 

is  the  owner  in  her  own  right,  and  as  her  Under  an  answer,  denying  "  each  and 
separate  i)roporty  of  forty -eight  shares  of  every  allegation  "  of  a  declaration,  wliich 
the  capital  stock,"  &c.,  but  not  that  tlie  alleged  that  the  defendant  "  wrongfully, 
plaintitt'  was  a  married  woman  ;  and  the  wilfully,  and  without  right,"  dug  a  ditch 
answer  "  denied  that  the  said  plaintiff  in  the  highwa}',  the  defendant  cannot 
was  or  still  is  the  owner  in  her  own  right,  show  that  he  acted  by  authority  of  the 
and  as  Iter  separate  pro])erty  of  any  surveyor  of  highways.  Siu)w  i'.  Chat- 
shares,"  &c.  :  held,  tlie  answer  raised  an  field,  11  (iraj',  12.  Adjtistment  and  set- 
issue  as  to  the  ownership  of  the  stock,  tlement  of  danuiges  sued  for  must  be 
Dow  V.  Gould,  31  Cal.  G2'J.  specially  ])leaded.     Parker  v.  Lowell,  11 

An  answer,  that  the  defendant  denies  Gray,  353. 

each  and  every  material  allegation  in  the  An  agreement,  by  a  vendor,  to  destroy 

complaint,  is  not  sufficient.     Mattison  v.  and  cancel  a  note,  in  consideration  that 

Smith,    1   Rob.  (N.  Y.)706;  Montour  r.  the  land  for  which  the  note  was  given  was 

Purd}',  11  MJDii.  384.  liable  to   overflow,   when    he    had  repre- 

((/)  All  matters  in  confession  and  avoid-  sented  that  it  was  not,  is  a  defence,  under 

ance,  showing  that  the  contract  sued  ujiou  the   general  issue,    in    an  action    on  the 

was  void  or  voidable,  must  be  affirmatively  note;  but  misrepresentations  of  the  ven- 

pleaded.     ^"iuley  v.  Quirk,  9  Min.  194.  dor  as  to  any  material  matter,  constitut- 


276 


PLEADING. 


[book  in. 


§  4.  Matter  in  mitigation  of  unliquidated  damages,  although 
not  in  total  disproof  of  any  of  the  items  claimed,  is  admissible 
under  a  general  denial ;  ^  (a)  and,  except  in  libel  and  slander, 
cannot  be  specially  pleaded  or  set  up  in  the  answer.^ 

§  5.  In  an  action  by  a  father  for  the  seduction  of  his  daughter, 
the  defendant  offered  to  prove,  not  in  mitigation  but  as  a  complete 
defence,  though  not  set  up  in  the  answer,  that  the  father  knew  of 
the  intercourse  between  the  defendant  and  his  daughter,  and  con- 
nived at  it.  Held,  although  a  good  defence,  not  having  been 
pleaded,  it  was  inadmissible  as  such,  though  it  might  have  been 
adduced  in  mitigation.'^  (6) 


1  Harter  v.  Crill,  33  Barb.  283. 
^  Smith  V.  Lisher,  23  Ind.  500. 

ing  an  inducement  to  purchase,  upon 
which  tlie  purchaser  rehed,  are  only  avail- 
able, under  the  statutes  of  Alabama,  under 
a  special  plea  of  set-ofF.  Kannady  v.  Lam- 
bert, 1  Ala.  (S.  C.)  314. 

The  defence  of  five  years'  adverse  en- 
joyment of  an  easement  must  be  pleaded. 
American  v.  Bradford,  27  Cal.  360. 

A  special  plea  of  facts  which  can  be 
given  in  evidence  under  the  general  issue 
is  bad  on  special  demurrer.  The  Governor 
V.  Lagow,  43  111.  134 ;  Manny  v.  Rixford, 
44  111.  129. 

That  a  plea  amounts  to  the  general 
issue,  can  only  be  taken  advantage  of  by 
a  special  demurrer.  Hotchkiss  v.  Ladd, 
36  Vt.  593. 

(rt)  In  this  case  the  following  important 
distinction  is  made  between  partial  defence 
and  mitigation  of  damages  :  "  Writers  have 
confounded  the  distinction,  to  some  extent, 
between  partial  defences  and  circumstances 
of  mitigation,  as  both  were  admissible, 
under  tlie  old  general  issue,  without  plead- 
ing them,  and  there  was  no  occasion  for 
keeping  up  the  distinction.  But  it  is  ob- 
vious that  a  defence,  as  understood  in  law 
language,  is  a  full  answer  to  the  whole  or 
to  some  part  of  the  plaintiff 's  demand. 
Mitigating  circumstances  do  not  and  never 
did  amount  to  a  defence  to  any  part  of  tiie 
plaintiff's  claim.  They  may  diminish  the 
nominal  claim  made  by  him,  but  do  not 
diminish  the  real  claim.  .  .  .  The  amount 
of  damages  in  this  class  of  actions  depends 
upon  the  circumstances  as  they  appear 
before  the  jury.  In  this  action  they  depend 
in  a  great  measure  upon  the  state  of  the 
relations  subsisting  between  the  parties 
(husband  and  wife)  ;  and  although  tlie 
parties  lived  together  in  tlie  most  unhappy 
state  and  condition,  and  in  danger  of  their 
lives,  it  is  no  defence  to  the  action.     Cer- 


3  Travis  v.  Barger,  24  Barb.  614. 


tainly  it  is  not  7iew  matter  of  defence."  Per 
Morgan,  J.,  Harter  v.  Crill,  33  Barb.  286. 

Evidence  that  the  plaintiff's  negligence 
contributed  to  the  injury  may  be  given 
under  a  general  denial.  Indianapolis  v. 
Rutherford,  29  Ind.  82. 

In  an  action  against  a  wagoner  for  neg- 
ligently pushing  the  plaintiff  off  a  ferry 
slip  into  the  water  ;  if  the  answer  contains 
a  general  denial,  and  no  averment  of  the 
plaintiff's  negligence,  and  even  assigns 
other  causes  for  the  injury,  as  the  careless- 
ness of  the  drayman  or  of  the  boat-hands, 
or  defects  in  the  ferry  landing,  the  defend- 
ant may  rely  on  proof  of  the  plaintiff's 
negligence.  Cunningham  v.  Lyness,  22 
Wis.  245. 

In  assumpsit  "  for  commissions  on  sale 
of  land  made  by  the  plaintiff  for  the 
defendant,  at  the  defendant's  request," 
the  defendant  pleaded  specialij^  that 
"  the  plaintiff,  not  being  the  agent  of 
the  defendant,  but  without  authority 
thereto,  pretended  to  sell "  the  real  es- 
tate of  the  defendant,  and  executed  and 
caused  to  be  recorded  a  writing  pur- 
porting to  be  a  sale  thereof,  by  reason  of 
whicli,  and  to  avoid  such  pretended  sale, 
the  defendant  had  incurred  exjjense  and 
damage,  wliich  he  offered  to  set  off  against 
such  claim  as  the  plaintiff  might  establish. 
Held,  that  the  plea  did  not  amount  to  the 
general  issue.  Its  object  was  simply  to 
set  off  unliquidated  damages  arising  out 
of  the  subject-matter  of  the  suit.  McEwen 
V.  Kerfoot,  37  111.  530. 

{b)  Where  an  answer  sets  up  matter 
not  responsive  to  the  declaration,  but 
which  seems  intended  to  anticipate  a  case 
which  the  plaintiff  might  possibly  endeavor 
to  make  at  the  trial,  such  matter  should 
be  stricken  out  on  motion.  Singleton  v. 
Pacific,  41  Mis.  465.     When,  to  a  petition 


CH.  III.]  GENERAL   ISSUE    AND    SUBSEQUENT    PLEADINGS.  277 

§  6.  It  is  sometimes  held,  that  a  plea  is  to  be  construed  as  a 
denial,  unless  the  fact  is  admitted.^  Thus,  under  the  laws  of  In- 
diana, a  denial  in  general  terms  of  all  material  allegations  of  the 
declaration  puts  the  plaintiff  to  the  proof  of  each  of  them.^  So, 
in  an  action  for  obstructing  a  trade,  the  unlawfulness  of  such 
trade  may  be  proved  under  the  general  issue.^  So  the  general 
issue,  in  an  action  for  fraud,  denies  both  the  act  and  the  intent.* 
So,  in  an  action  for  wrongful  dismissal  from  service,  a  traverse  of 
the  allegation  puts  in  issue  the  wrongfulness,  as  well  as  the  fact, 
of  dismissal.^  So  in  an  action  for  damages,  sustained  in  falling 
into  a  ditch  which  the  defendants  had  left  open  and  unguarded 
by  the  highway,  the  declaration  alleged  that  the  plaintiff  fell  into 
it  without  any  fault  or  want  of  care  on  his  part.  The  answer 
denied  that  "  the  plaintiff,  without  any  fault  or  want  of  care  on 
his  part,  did  fall  therein."  Held,  a  sufficient  denial,  both  of  the 
fact  of  falling  in  and  due  care  on  the  part  of  the  plaintiff.*^  So 
where  a  complaint  avers  facts  constituting  a  deraignment  of  title, 
the  deraignment  being  matter  of  evidence,  a  failure  to  deny  it 
does  not  constitute  an  admission.  Where  a  complaint  averred 
that  the  title  of  the  defendant  Avas  derived  in  a  certain  manner, 
and  the  answer,  that  it  was  derived  in  a  different  manner  ''  and 
not  otherwise  ;  "  held,  a  denial  of  the  deraignment  by  the  formal  tra- 
verse of  the  common  law.'^  So,  with  a  writ  containing  two  counts 
in  contract,  one  for  the  balance  found  due  to  the  plaintiff  by  the 
parties  on  accounting  together,  and  the  other  for  a  like  sum  for 
goods  sold,  and  laying  the  damages  at  a  less  amount  than  the  two 
sums  added  together,  the  plaintiff  filed  a  bill  of  particulars  not  in 
terms  confined   to  either  count,  charging  the   defendant  with  a 

1  Georpe  ?•.  Nelson,  2-3  Ind.  392.  5  Horton  v.  McMurtry,  5  Hurl.  &  Nor. 

2  SpauUliiig  V.  Hiirvev,  7  Ind.  429.  7G7. 

3  Tarleton'y.  M'Gawlev,  Peake,  Cas.  6  Wall  i'.  Buffalo,  &c.,  18  N.  Y.  (4 
207;  ace.  Harmam  v.  Mockett,  2  B.  &  C.  Smith)  119. 

924.  7  Siter  v.  Jewitt,  33  Cal.  92. 

«  Mummerv  v.   Paul,   8  Jur.   986;  2 
Greenl.  Evid.  190,  §  232. 

alleprinj?  a  deposit  with  the  defendant  by  of  a  flathoat  while  it  was  beino^  towed  by 

the    plaintiff's    intestate,   the   defendant  the  defendant's   steamboat,  allecred    that 

answers    by    denyinj^'  such   deposit,    but  the  loss  resulted  from  the   unskilfulncss 

admits  that  the  i)laiutiff  made  two  special  and  negligence   of  the   defendants,  their 

dcjiosits  with  him  in  his  own  name,  and  servants,   &c.     Tlie  defendant  pleaded  a 

then  sets  u])  a  defence  in  respect  to  said  general  denial,  and  that  the  loss  resulted 

deposits  ;  tlic  wliole  of  the  answer,  except  from  the  fault  and  negligence  of  the  jilain- 

the  part  denying,  will  he  stricken   out  on  tifls.     Ilelil,  the  second  answer  amounted 

motion.     A(hiius  v.  Trigg,  "il  Mis.  141.  only  to  a  denial,  anil  was  properly  stricken 

The  complaint,  in  a  suit  for  the  sinking  out  on  motion.     Neal  v.  Scott,  25  Ind.  440. 


278  PLEADING.  [book   III. 

number  of  items  of  goods,  mostly  intoxicating  liquors,  in  less 
quantities  than  the  law  allowed  to  be  sold  without  license  ;  and 
the  defendant  answered  that  the  goods  alleged  to  have  been  sold 
were  intoxicating  liquors  sold  without  license.  Held,  the  plain- 
tiff was  not  entitled  to  judgment  on  the  first  count  for  want  of 
an  answer.^ 

§  7.  But,  on  the  other  hand,  a  denial  in  the  answer,  of  an  alle- 
gation in  the  complaint,  cannot  be  made  by  implication,  but  must 
be  direct  and  unequivocal.^  It  is  not  a  sufficient  denial  in  a 
plea,  to  say  the  defendants  "  do  not  admit "  the  allegations  of  the 
plaintifl".  In  such  case,  he  need  not  prove  them.^  And  an 
answer,  which  merely  denies  wrongfulness,  is  an  admission  of  the 
fact.*  So  where  the  plaintiff,  under  a  count  for  goods  sold,  files 
a  bill  of  particulars,  charging  the  defendant  with  many  items, 
some  of  which  are  for  goods  unlawfully  sold,  and  crediting  him 
with  payments  made  by  the  defendant  generally,  and  applied  by 
the  plaintiff  to  the  unlawful  items  ;  the  defendant  cannot,  under 
an  answer  denying  his  liability  on  the  single  ground  that  all  the 
goods  were  sold  in  violation  of  law,  dispute  this  appropriation 
of  payments.^  So,  under  Mass.  Stat.  1852,  c.  312,  §§  14,  15,  the 
illegality  of  the  contract  declared  upon,  in  an  action  on  the  com- 
mon counts,  or  on  an  account  annexed,  cannot  be  given  in  evi- 
dence by  the  defendant,  unless  specified  in  his  answer.*^  So  to  a 
declaration,  *'  for  that  the  defendant  debauched  and  carnally 
knew  the  plaintiff's  wife,"  the  defendant  pleaded  not  guilty. 
Held,  it  was  not  necessary  for  the  plaintiff"  to  prove,  that  a  female 
shown  to  have  been  debauched  by  the  defendant  was  the  wife  of 
the  plaintiff.''  So  fraud,  if  relied  on,  must  be  alleged  in  the  an- 
swer.^ So  in  an  action  for  taking  the  plaintiff's  horse  and  wagon, 
and  the  contents  of  the  wagon,  an  answer,  that  the  defendant,  as 
an  officer,  found  them  in  the  act  of  transporting  intoxicating 
liquors,  in  violation  of  law,  and  detained  them  only  so  long  as 
was  legal  and  necessary,  and  in  other  respects  denying  all  the 
allegations  of  the  declaration,  admits  a  primd  facie  case.  The 
plaintiff  need  not  introduce  further  evidence,  although  the  defend- 

1  Rundlett  v.  Weeber,  3  Gray,  263.  5  Rundlett  v.  Weeber,  3  Gray,  263. 

2  West  V.  American,  44  Barb.  175.  *'  Gransjer  v.  Ilsley,  2  Gray,  521. 

3  Bomberger  v.  Turner,  13  Ohio.  St.  ^  Kenrtck  v.  Horder,  7  Ell.  &  B.  628. 
263.  8  California,  &c.  v.  Wriglit,  8  Cal.  585. 

*  Lay  V.  Neville,  25  Cal.  549. 


CH.  III.]  GENERAL   ISSUE    AND    SUBSEQUENT    PLEADINGS.  279 

ant  afterwards  introduces  evidence  in  justification.^  So  in  an 
action  for  breaking  and  entering  a  close,  and  removing  a  fence  ; 
the  defendant  cannot  disprove  such  removal  under  a  denial  merely 
of  the  breaking  and  entering.'-^  (a) 

§  8.  Suit  against  the  owners  of  a  steamboat,  to  recover  the 
value  of  a  package  of  money  intrusted  to  the  clerk  of  the  boat, 
to  be  by  him  transported  to  another  port.  Held,  an  answer,  aver- 
ring want  of  authority  in  the  clerk  to  receive  and  carry  such 
packages,  without  compensation  to  the  owners  of  the  boat,  and 
without  their  knowledge,  was  not  bad  as  amounting  to  the  gen- 
eral issue,  there  being  no  averment  in  the  complaint  that  the  de- 
fendants were  engaged  in  the  business  of  carrying  packages  of 
money  for  hire.^ 

§  9.  In  an  action  of  tort,  the  defendant  pleaded  "  not  guilty," 
with  notice  that  he  should  prove  a  settlement.  Held,  after  the 
jury  were  called,  the  defendant  could  not  amend  his  notice, 
though  it  was  defective  in  form,  and  therefore  the  court  should 
not  strike  it  out  on  motion,  as  it  contained  a  substantial  de- 
fence.* 

§  10.  In  an  action  for  enticing  away  a  servant,  the  defendant 
may  show,  under  the  general  issue,  a  judgment  against  the  ser- 
vant for  leaving  the  plaintiff,  and  satisfaction  thereof  since  the 
bringing  of  the  present  suit.  It  was  intimated  that  the  court 
would  stay  the  action  on  motion. °  (&) 

§  11.  With  reference  to  the  pleadings  subsequent  to  the  plea 

1  Kent  V.  Willey,  11  Gray,  368.  <  Whitehall  v.  Smith,  24  111.  178. 

2  Knapp  i\  Slocumb,  9  Gray,  73.  ^  Bird  v.  Kandall,  3  Burr.  1345. 

3  The  Cincinnati,  &c.  v.  Boal,  15  Ind. 
345. 

(a)  It  is  contrary  to  the  statutory  rules  a  verified  answer  may  deny  possession  of 

of  pleading,  to  deny  the  allegations  in  a  the  plaintiff,  and  afterwards  allege  that, 

complaint    conjunctively.      The   answer  if  piaintifls  had  a  title,  they  had  forfeited 

should  contain  a  specific  denial  to  each  it  before  the  defendant  entered.     Bell  v. 

allegation,  or   a   denial  according   to  in-  Brown,  22  Cal.  671. 

formation  and  helief;  and  all  allegations  Under  the  system  of  ]i]ca(ling  of  Ala- 

not  thus  denied  will  be  deemed  admitted,  bama,  whicli  allows  a  phnalitj-  of  pleas. 

Fish  V.  Redington,  ol  Cal.  185.  a  special  plea  may  present  matter  of  de- 

(6)  Objections  to  inconsistent  defences  fence  avaiial)le  under  the  general  issue, 

must  be  taken  by  demurrer,  or  by  motion  which    is    also    pleaded,     llopkinson    v. 

to  strike  out.     Undies  v.  Morrell,  25  Cal.  Shelton,  1  Ala.  (S.  C.)  303. 

31.     Under  the  Practice  Act  of  California,  In   trespass  to  try  title,  a  plea  of  the 

several  grounds  of  defence  ma}-  be  set  up  Statute  of  Limitations  does  not  preclude 

in  the  same  answer  ;  but,  in  verified  plead-  any  defence  available  under  the  plea  of 

ings,    to    set  up    directly    contradictory  not  guilty.     Kefugio  v.   Byrne,  25  Tex. 

defences,  is  perjury.     But  not  acontradic-  l'J3. 

tion  arising  from  implication  of  law  merely.  Tlie  plea    of   not   guilty,   filed  to    the 

In  an  action  to  recover  a  mining  claim,  original  declaration,  in  an  action  on  the 


280  PLEADING.  [book   III. 

or  answer,  a  plaintiff  is  not  bound  to  ref)ly  to  averments  in  the 
answer,  unsupported  by  proof,  which  set  up  new  matter.^  (a) 

§  12.  Declaration,  that  the  plaintiff  delivered  to  the  defendants, 
as  common  carriers,  a  parcel,  to  be  carried  by  them  from  London 
to  Plymouth.  Breach,  non-delivery  to  the  plaintiff  at  Plymouth. 
Plea,  a  tender  on  payment  for  the  carriage,  but  that  the  plain- 
tiff refused  to  pay  the  amount,  whereupon  the  defendants  refused 
to  deliver  the  parcel.  The  plaintiff  replied,  that,  within  a  rea- 
sonable time  after  the  defendants  had  tendered  the  parcel,  he 
offered  at  Plymouth  to  pay  for  its  carriage,  and  requested  the 
defendants  to  deliver  it,  but  they  refused  to  deliver  it  at  Ply- 
mouth. The  defendants  having  taken  issue  on  this  replication, 
the  jury  found  that  the  allegations  in  it  were  proved.  Held, 
that,  if  the  defendants'  having  sent  back  the  parcel  to  London 
excused  its  non-delivery,  this  should  have  been  specially  re- 
join ed.^ 

§  13.  In  an  action  in  substance  for  the  value  of  coal  taken  from  a 
mine,  a  replication  to  the  plea  of  the  Statute  of  Limitations,  that 
the  wrongful  taking  was  fraudulently  concealed  from  the  plaintiff 
until  within  six  years  before  suit,  was  disallowed,  on  the  ground 
that  a  court  of  equity  would  not  restrain   the   defendant  from 

1  Gouhenant  v.  Brisbane,  18  Tex.  20.  ^  Great,  &c.  v.  Crouch,  3  Hurl.  &  Nor. 

183. 

case  for  deceit,  stands  as  the  plea  to  the  petition,  and  alleging  that  it  was  corn- 
declaration  when  amended,  and  it  is  not  mitted  by  a  third  person,  is  merely  a  denial, 
necessary  to  re-file  it.  The  rule  is,  tliat  and  requires  no  reply.  Hoffmau  v.  Gordon, 
a  defendant  should  answer  an  amended  15  Ohio  St.  211. 

declaration  anew,  unless  he  has  a  plea  on  If  an  answer  alleges  mere  matters  of 

file  which  would  answer  any  declaration  evidence,   a    replication,    traversing  the 

in   the  form  of  action   used.     Eames  v.  ultimate    and    issuable    fact   which    the 

Morgan,  37  111.  260.  answer  was  intended  to  aver,  is  sufficient. 

A  plea,  pleaded  as  an  equitable  defence,  Moore   v.   Murdock,   26   Cal.   514.     The 

maybe  sustained  as  a  plea  at  law,  if  it  complaint  averred  that  plaintiff  owned  and 

discloses  a  good  legal  defence.     Hyde  v.  was  entitled  to  possession  of  the  property 

Graham,  1  Hurl.  &  Colt.  593.  in  question.     The  answer  denied  this,  and 

If  an  answer  presents  merely  matter  of  set  up  that,  at  the  time  of  the  alleged 

defence,  it  cannot  be  treated  as  a  set-off  wrongful  levy,  it  was  possessed  and  owned 

or   counter-claim,    though  it   may  be  so  by  a  third  person.     Held,  these  averments 

called  by  the  defendant.    True  v.  Triplett,  were  not  new  matter,  which,  under  tlie 

4  Met.  Ky.  57.  former  system,  was  admitted,  by  failure 

To  defeat  a  recover}^  of  the  possession  to    file    a    replication.      Woodworth     v. 

or  value  of  personal  property,  the  defend-  Knowlton,  22  Cal.  164. 

ant  may  in  a  supplemental  answer  set  up,  A  replication   in   the  form  of  special 

that,  since  commencement  of  the  action,  traverse  should  conclude  with  a  verifica- 

he  has  been  required  to  deliver  and  has  tion.     Mc Williams  v.  King,  3  Vroom,  21. 

delivered  the  property  to  anotlier  person  If  a  plaintiff  in  assumpsit  replies,  deny- 

entitled   to  its   possession.      Bolander  v.  ing  a  plea  setting  up«a  tort  in  recoupment, 

Gentry,  36  Cal.  105.  instead  of  demurring,  his  tender  of  issue 

(a)  An  answer,  denying  that  the  defend-  renders   the    tort   a   material    subject   of 

ant   committed   an    act  charged    in   the  inquiry.     Streeter  v.  Streeter,  43  III.  155. 


CH.    III.]  GENERAL    ISSUE   AND   SUBSEQUENT   PLEADINGS.  281 

setting  up  the  defence,  and  that,  if  there  was  any  right  to  equi- 
table rehef,  it  could  only  be  by  a  bill  for  an  account,  in  which  the 
amount  allowed  would  be  different  from  the  amount  recoverable 
at  law.  "  No  case  has  decided  that  fraud  is  an  answer  in  equity 
to  the  Statute  of  Limitations,  with  respect  to  matters  that  occur  in 
the  way  of  wrong  or  contract  between  man  and  man.  ...  If 
this  replication  of  fraud  were  admitted,  .  .  .  the  defendant  would 
indignantly  deny  its  truth  .  .  .  and  say,  that  though  he  may 
have  taken  under  ground  some  coal  not  belonging  to  him,  it  was 
a  mgre  mistake  ;  .  .  .  and  nothing  could  be  more  unsatisfactory 
than  an  inquiry  whether  a  man  who  fifteen  years  ago  took  some 
of  hi?  neighbors's  coal,  took  it  by  mistake  or  by  fraud."  ^ 

§  1^.  The  plaintiff  sued  to  recover  certain  slaves,  of  which 
he  alleged  the  defendant  had  illegally  and  fraudulently  obtained 
possess'on,  and  had  set  up  a  fraudulent  claim  thereto.  The 
defendait  answered,  that  the  plaintiff  had  voluntarily  made  to 
him  a  dejd  of  gift  of  the  slaves,  and  given  him  possession.  The 
plaintiff  give  evidence  to  show  that  the  deed  was  a  donatio  causd 
mortis.  Eeld,  the  answer  was  in  the  nature  of  a  plea  of  recon- 
vention or^ross  petition,  and  the  plaintiff  ought  not  to  have  been 
allowed  to  o-ive  any  evidence  dehors  the  deed,  without  having 
first  set  up  he  matter  to  which  it  related  by  way  of  amendment 
to  his  original  petition.^ 

§  15.  To  a  )lea  justifying  an  arrest  under  an  execution,  the 
plaintiff  replie\  payment  before  the  arrest,  formally  traversing 
that  the  judgment  was  then  in  full  force,  <fec.  Held,  the  traverse 
was  to  an  immaerial  matter,  and  a  rejoinder,  denying  payment, 
was  good.^ 

§  16.  Where  a  Jea  of  fraud  to  a  contract  under  seal  set  forth 
that  the  deed  was  xs^ecuted  and  delivered  to  A,  to  be  delivered  to 
the  plaintiff,  in  per^miance  of  a  particular  agreement  between 
him  and  A,  and  tha  A.  and  tlie  plaintiff  coUusively  made  a 
difibrent  agreement,  ^ss  beneficial  to  the  defendants,  and  the 
deed  was  delivered  ouuich  new  agreement ;  held,  a  replication, 
that  the  deed  was  not  btained  by  fraud  and  covin  of  A  and  the 
plaintiff,  was  bad,  became,  when  a  defence  consists  of  several 
facts,  the  replication  mi.t  deny  only  a  single  fact,  or  the  facts 
making  a  single  point  of  Ve  defence.^ 

1  Hunter  v.  Gibbons,  38  Eng.  L.,  Kq.  3  Buck  v.  Blanchard,  20  N.  H  323. 

450  ;  per  Pollock,  C.  B.,  ib.  454.  4  Watriss  v.  Pierce,  36  N.  II.  232. 

■''  Thompson  v.  Thompson,  12  Tex'27. 


282 


PLEADING. 


[book   III. 


CHAPTER   IV. 


TORT  AND  CONTRACT.  —  FRAUD. 


1.  Joinder  of  tort  and  contract;  erroneous 
pleas,  &c. 

5    Pleading  in  case  of  fraud. 
11.  Parties  in  case  of  fraud — joint  parties, 
&c. 


17.  Fraud — joinder  of  several  caises  of 
action. 

20.  Variance  in  case  of  fraud. 

23.  Defence  of  fraud;  rescinding  and  res- 
titution. 


§  1.  Questions  of  pleading  often  arise  from  the  settlec' distinc- 
tion between  torts  and  contracts,  (a) 


(a)  A  count  in  assumpsit  cannot  be 
joined  with  a  count  for  a  deceit ;  and, 
where  added  after  an  award  and  an  appeal 
therefrom  by  the  defendant,  under  a 
declaration  containing  a  count  for  deceit 
only,  it  was  properly  stricken  ofl'  by  the 
court  on  the  trial.  Pennsylvania  v.  Zug, 
47  Penn.  480. 

After  counts  by  the  plaintiff,  as  execu- 
tor, for  an  excessive  distress,  and  for 
distraining  for  more  rent  than  was  due, 
the  declaration  proceeded  thus  :  "  And  the 
plaintiff,  as  such  executor  as  aforesaid, 
also  sues  the  defendant  for  money  paid  by 
the  plaintiff,  as  such  executor  as  aforesaid, 
for  the  defendant,  at  his  request,  and  for 
money  received  by  the  defendant  for  the 
use  of  the  plaintiff,  and  for  money  found 
to  be  due  from  the  defendant  to  the  plain- 
tiff on  an  account  stated  between  them. 
And  the  plaintiff,  as  such  executor  as 
aforesaid,  claims  £50."  Held,  on  de- 
murrer, that  the  declaration  was  bad  for 
misjoinder.  Davies  v.  Davies,  1  Hurl.  & 
Colt.  4-51. 

A  count,  alleging  that  the  plaintiff  de- 
posited stocks  with  the  defendant  as  col- 
lateral security,  that  it  was  the  duty  of 
the  defendant  to  keep  them  safely,  and  to 
hold  tliem  exclusively  as  such  security, 
and  that  he  fraudulently  disposed  of  them, 
whereby  the  plaintiff  lost  them,  is  a  count 
in  tort,  and  cannot  be  joined  with  a  count 
in  assumpsit.  Stevens  v.  Hurlbut,  31 
Conn.  146. 

Counts,  for  a  rescission  provided  for  by 
contract,  and  for  a  rescission  because  of 


fraud,  would  not  be  repugnnt ;  but  one 
count  for  damages  for  the  <aud,  and  one 
for  a  rescission,  would  b.  Pearsoll  v. 
Chapin,  44  Penn.  9. 

A  party  cannot  claim  layment  of  his 
demand  out  of  the  proeeds  of  a  sale, 
and  also  that  the  sale  siall  be  set  aside, 
and  the  land  sold  de  novc  for  informalities. 
Ouliber  v.  Creditors,  I'La.  An.  287. 

The  objection  that  several  causes  of 
action  are  improper''  united  can  only 
be  taken  by  demurre-  Jones  v.  Hughes, 
16  Wis.  683  ;  23  Inr  388.  Two  or  more 
causes  of  action  r^y  be  united,  if  such 
union  does  not  ar^imt  to  a  misjoinder. 
Fritz  V.  Fritz,  23  id.  388. 

This  objectiormust  be  specially  as- 
signed as  a  caus<jf  demurrer.  Washing- 
ton u.  Fames,  6^11en,  417. 

When  it  is  o"^©  seen  that  a  declaration 
contains,  mixe  up  in  the  same  count,  dis- 
tinct causes  o^ction,  some  for  liquidated 
claims,  othersounding  only  in  damages, 
the  defendar  must  be  entitled  to  separate 
them  and  r-ad  accordingly.  Crampton 
V.  Walker,  Ell.  &  E.  821. 

Where  ounts  in  assumpsit  and  tort 
are  joine'  t'^e  plaintiff  may  be  compelled 
to  elect^ipo"  which  he  will  proceed. 
Noble's^dm'r  v.  Laley,  50  Penn.  281. 

It  is.  good  ground  of  demurrer,  that  a 
cause '  action  founded  on  a  contract  is 
unite' ■^^it'i  one  founded  on  an  injury  to 
or  ftention  of  property.  Ederlin  v. 
jud-.  36  Mis.  350 ;  Hoagland  v.  Hanni- 
bal^9  Mis.  451. 

nder  (Iowa)   Rev.  §  2844,  tort  and 


CH.   IV.] 


TORT   AND   CONTRACT.  —  FRAUD. 


283 


§  2.  A  claim  for  nnlfiwful  conversion  being  founded  on  tort, 
and  one  for  money  had  and  received,  upon  contract,  they  are 
distinct  causes  of  action,  and  cannot  be  joined  in  the  same  suit.^ 
So  an  action  growing  out  of  a  contract  with  A  cannot  be  joined 
with  a  count  on  a  tort  of  B  ;  though  the  objection  must  be  taken 
before  joining  issue.^  So  a  count,  upon  an  interference  with  the 
plaintiff's  right  to  pass  on  a  navigable  stream,  cannot  be  joined 
with  a  count  for  breach  of  a  contract,  which  gives  the  plaintiff 
such  right ;  each  is  a  distinct  cause  of  action.^  And  where  con- 
tract and  tort  are  joined,  the  plaintiff  must  elect  upon  the  trial 
between  them.'* 

§  3.  When  non-assumpsit  is  pleaded  to  an  action  on  the  case  iu 
tort,  it  may  be  stricken  out  on  motion.^ 

§  3  a.  The  law  does  not  allow  a  set-off  between  tort  and  con- 
tract.^ 

§  4.  It  is  often  difficult  to  determine  w^hether  an  action  is  in 


1  Cobb  V.  Dows,  9  Barb.  230. 

^  Wilson  V.  Tbonipson,  1  Met.  (Ky.) 
123.  See  Andrews  v.  Lyncli,  27  Mis. 
167. 

3  Khodes  v.  Otis,  33  Ala.  578.1 

contract  may  be  joined,  if  tbey  are  between 
the  same  parties,  in  the  same  right,  and 
liave  the  same  venue.  Turner  v.  First, 
26  Iowa,  562. 

Under  (Mass.)  Gen.  Sts.  c.  129,  §  2,  cl. 
5,  counts  in  contract  and  tort  may  be 
joined  ;  although,  in  the  writ,  the  action  is 
entitled  one  of  contract.  Ilulett  v.  Pixley, 
97  Mass.  29. 

A  comi)laint,  alleging  that  A  intrusted 
liis  money  to  H,  and  tliat  he  refuses  to 
account,  and  has  fraudulently  purchased 
certain  lands  and  conveyed  part  to  C  and 
part  to  D  without  consideration,  and  seek- 
ing a  reconveyance  from  C  and  D,  and 
judgment  against  1>  for  the  money  found 
due  on  accounting,  is  not  multifarious. 
Blake  v.  Van  Tilhorg,  21  Wis.  672. 

Where  counts  in  tort  and  contract  are 
joined,  it  should  appear  clearly,  from  the 
statement  of  facts,  that  the  causes  of  action 
arose  out  of  the  same  tri]nsaction.  A 
general  allegation  that  such  is  the  case  is 
insufficient.  Flynn  /•.  Bailey,  50  Barb.  73. 
In  an  action  for  the  unsoundness  of  a 
horse  sold,  the  complaint  contained  aver- 
ments of  fraud  and  warranty,  mingled 
togetlicr,  but  in  such  a  way  that  they 
could  be  separateil.  Held,  that  this  was 
a  defect  which  should  have  been  taken 
advantage  of  by  demurrer,  and  that 
the  plaintiff  was  entitled  to  recover  upon 


4  Noble  V.  Laley,  50  Penn.  281. 

5  Wilkinson  v.  Moseley,  30  Ala.  562. 

•^  The  Indianapolis,  &c.  v.  Ballard,  22 
Ind.  448. 


proof  of  a  warranty  alone,  tlie  averments 
of  fraud  being  stricken  out  as  sur]>lu.<age. 
Quintard  v.  Newton,  5  Rob.  (N.  Y.)  72. 

A  count  insufficient,  in  not  setting  out 
facts  constituting  the  i/rardnun  of  the 
action,  cannot  be  supported  by  another 
count.     Curtis  v.  Moore,  15  Wis.  134. 

The  different  causes  of  action,  which  the 
(Cal.)  Practice  Act,  §  64,  permits  to  be 
united  in  one  complaint,  should  be  stated 
separately.  McCartyj;.  Fremont,  23  Cal. 
196. 

Where  several  similar  causes  of  action 
are  joined  in  one  count,  the  proper  mode 
of  objection  is  by  motion  that  the  i)laintifF 
elect  one  and  strike  out  the  others,  not  by 
demurrer.  Otis  v.  Mechanics',  35  Mis- 
128;  State  v.  Davis,  ib.  40(5. 

In  a  complaint  to  recover  for  stock 
killed  by  a  railroad,  if  in  one  count  the 
stock  is  described  as  common  stock,  and 
in  another  as  stock  of  tiie  full  blood,  such 
ditlercncc  is  sufficient  to  sustain  and  ren- 
der proper  separate  counts.  Toledo  v. 
Daniels,  21  Ind.  256. 

An  averment,  that  a  second  count  is  for 
the  same  cause  of  action  as  the  first,  if 
not  repugnant  to  any  thing  else  in  the 
declaration,  is  decisive.  Winnie  r.  Pond, 
34  Conn.  391.  See  Smith  v.  Geortner, 
40  How.  (N.  Y.)  Pr.  185. 


284  PLEADING.  [book   III. 

form  ex  contractu  or  ex  delicto.  It  is  said,  perhaps  the  best 
criterion  is  tliis :  If  the  cause  of  action,  as  stated,  arises  from  a 
breach  of  promise,  the  action  is  ex  contractu;  but  if  from  abroach 
of  duty,  growing  out  of  the  contract,  it  is  ex  delicto  and  case.^ 
Whether  the  action  is  for  tort,  depends  on  the  substance  of  the 
declaration.-  Whether  an  action  is  in  form  ex  coritractu  or  ex 
delicto,  if  the  cause  of  action,  as  set  forth,  originates  in  a  con- 
tract, the  contract  must  be  proved  as  laid.^  (a) 

§  4  a.  A  declaration,  that  the  plaintiff  purchased  of  the  defend- 
ant a  note  against  one  A,  whom  the  defendant  affirmed  to  be  a 
person  of  good  credit,  when  in  fact  he  was  poor,  and  the  note  was 
of  no  value,  whereby  the  defendant  deceived  and  defrauded  him 
to  his  damage,  &c.,  is  bad  in  assumpsit,  as  no  promise  is  averred, 
and  bad  in  case,  in  not  alleging  a  scienter.  Neither  is  it  a  good 
declaration  in  case,  upon  a  warranty,  as  it  states  no  warranty.^ 
But  where  the  averment  is,  that  the  defendant  engaged  to  safely 
keep,  pasture,  specially  care  for,  and  attend  to  certain  horses  of 
the  plaintiff,  for  a  reasonable  compensation  ;  and  the  breach,  that, 
not  regarding  his  duty  in  that  behalf,  he  conducted  himself  so 
carelessly,  negligently,  and  improperly,  and  by  his  absolute  mis- 
use and  abuse,  in  and  about  the  keeping  and  pasturing,  caring 
for,  and  attending  to,  the  horses,  that  they  were  injured  :  the  dec- 
laration may  be  treated  as  in  assumpsit,  and  the  plea  changed 
from  not  guilty  to  no7i  assumpsit,  payment,  and  set-off.  So 
although  proper  care  is  averred  to  have  been  the  duty  of  the 
defendant  under  the  contract.^  (h) 

1  Wilkinson  v.  Moseley,  18  Ala.  288.  *  Bedell  v.  Stevens,  8  Fost.  118. 

'i  Carter  v.  White,  32  111.  509.  5  Cook  v.  Haggerty,  2  Grant,  257 ;  36 

3  Mann  v.  Birchard,  40  Vt.  326.  Penn.  67. 

(a)  In  an  action  by  the  reversionary  wrongfully  converted  them  to  their  own 
owner  of  a  slave  against  the  hirer  from  use,  to  the  great  loss  and  damage  of  the 
the  life  tenant  for  an  injury  to  the  slave,  plaintiff,  with  a  prayer  of  judgment  for 
a  count  alleged  that  the  defendant  had  their  value.  Austin  v.  Eawdon,  44  N.  Y. 
hired  ujion  tlie  understanding  and  agree-  63.  Where  the  facts  stated  in  a  com- 
ment tliat  the  slave  shouldnot  be  em-  plaint  constitute  it  a  claim  for  fraudulent 
ployed  in  or  about  the  blasting  of  rocks  representations ;  and  the  complaint  prays 
or  using  powder,  and  that  the  defendant,  a  judgment  for  damages  to  a  certain 
in  violation  of  his  agreement,  did  so  amount :  the  action  is  an  action  for  dam- 
employ  him,  and  in  consequence  he  was  ages  for  fraud,  although  there  is  also  a 
seriously  injured.  Held,  the  count  was  prayer  for  alternative  relief,  to  which  the 
in  tort.  Harvey  v.  Skipwith,  16  Gratt.  plaintiflf"  is  not  entitled.  Graves  v.  Spier, 
393.  58  I3arb.  349. 

A  complaint  was  held  to  be  in  contract,  (l>)  The  rule  against  joining  tort  and 

which  alleged  tliat  the  defendants  agreed  contract  is  often  changed  by  statute.     In 

to   deliver    certain   securities,   but    after  Kentucky,  tliat  the  cause  of  action  set  up 

demand    refused    to   deliver    them,   and  in  an  amended  petition  is  in  tort,  while 


CH.    IV.]  TORT   AND    CONTRACT.  —  FRAUD.  285 

§  5.  QuestioDS  of  pleading  often  arise  in  cases  of  alleged  yVawc/, 
which  is  the  intermediate  ground,  or  the  connecting  link,  between 
tort  and  contract. 

§  6.  A  count  in  assumpsit  cannot  be  joined  with  a  count  for  a 
deceit;  and  where,  under  a  declaration  containing  only  the  latter, 
after  an  award  and  an  appeal  therefrom,  the  former  was  added,  it 
was  properly  struck  off  upon  the  trial.  The  court  remark: 
"That  tlie  same  evidence  will  often  support  different  forms  of  ac- 
tion there  is  no  doubt;  but  cases  which  prove  this  cannot  be 
resorted  to,  to  prove  the  rightful  joinder  of  inconsistent  actions. 
The  same  evidence  will  often  support  trespass  or  case,  deceit  or 
trover,  trover  or  replevin,  assumpsit  or  debt,  but  it  does  not  fol- 
low that  you  can  join  these  several  actions."  ^ 

§  7.  A  complaint  contained  two  or  more  counts  confessedly  on 
contract,  and  well  pleaded,  and  another,  which  set  forth  that  the 
plaintiffs  sold  and  delivered  the  defendant  goods  to  a  cerlain 
amount,  on  a  credit  of  six  months  ;  that  the  defendant  was  in- 
solvent at  the  time  of  said  sales,  and  purchased  the  goods  without 
any  intent  to  pay  for  them  and  with  the  intent  to  defraud  the 
plaintiffs  of  their  value,  and  that  by  reason  of  said  fraud  the  de- 
fendant became  liable  to  pay  for  the  goods  immediately  upon  their 
delivery.  The  goods  not  having  been  paid  for,  the  plaintiffs 
demanded  judgment  for  the  amount  of  the  sales  with  interest. 
The  action  was  brought  before  the  expiration  of  the  term  of 
credit.  The  defendant  demurred,  for  the  joinder  of  improper 
causes  of  action  in  one  complaint,  and  for  want  of  any  sufficient 
cause  of  action  set  forth  in  the  last  count.  Held,  a  good  com- 
plaint, and  demurrer  overruled.^ 

1  The   rennsylvania,   &c.  v.   Zug,  47         -  Roth  v.  Pahner,  27  Barb.  652. 
Penn.  480 ;  per  Agnew,  J.,  ib.  484. 

tliat  set  out  in  the  oritiinal  petition  was  in  A.  E.,  Dr.     To  one  cow  killed  by  j'our 

contract,  is  not  <;roinKl  of  (leniurrer.  Iloril  locomotive,    within    Clinton,    &c.,    S50." 

V.  Ciiandlcr,  lo  B.  Mon.  403.  On  appeal,  a  ju(li,aiicnt  for  the  plaintiff 

Uniler  the  Code,  in  I\Iissouri,  a  piaintitl"  was    reverj;ed,  for   the   reasons,  that   tlie 

can  only  recover  on  the  cause  of  action  complaint  was  not    sufHcient   under   the 

stated  in  his  petition.     Where  tlie  jietition  statute,  as  it  did  not  aver  that  tlie  road 

is  for  goods  sold  and  delivered,  nnd  tlie  was  not  fenced  ;  nor  as  a  charge  of  tort  at 

evidence  siiows  a  trespass  tie  Imn.  asport.,  conunon    law,  because   it  did  not  allege 

lie  cannot  recover.     J>ink  y.    Vaughn,  17  negligence;  nor  as  a  count  in  assumpsit, 

Mis.  585.  on  waiver  of  the  tort,  for  not  alleging  tiiat 

The  statutory  modification  of  the  law  the  comjjany   used   the  dead   animal,  or 

upon  the  subject  is   strongly  illustrated  derived  any  benefit  from  killing  her,  or 

by  a  late  case  in   Indiana,  in  wliieh   the  jiromised   to  pay.     Toledo,  &c.  v.  Lunch, 

declaration  against  a  railroad  corporation  23  Ind.  10. 
was  as  follows :    "  The   Toledo,   &c.,   to 


286  PLEADING.  [book   III. 

§  8.  Held,  also,  that  the  cause  of  action  set  forth  in  the  last 
count  was  upon  contract ;  that  fraud  was  sufficiently  set  forth  to 
justify  a  rescission ;  that  no  specific  act  on  the  part  of  the  plain- 
tiffs, other  than  bringing  this  action,  was  necessary  to  manifest 
the  plaintiffs'  intent  to  rescind ;  that  the  facts  justified  the  plain- 
tiffs in  making  their  election  to  sue  in  assumpsit  rather  than  tort ; 
and  that  they  did  not  thereby  adopt  the  express  contract,  but 
relied  on  the  implied  contract  to  pay,  arising  from  the  delivery 
and  the  defendant's  possession  of  the  goods.^ 

§  8  a.  The  rules  on  the  subject  of  pleading,  stated  in  the  first 
chapter,  find  frequent  illustration  in  cases  relating  to  fraud. 

§  9.  It  is  held,  in  general,  that  the  burden  of  charging,  as  well  as 
proving  fraud,  is  on  the  party  who  relies  upon  it;  requiring  facts 
and  not  conclusions ;  although  it  is  unnecessary  to  state  the  evi- 
dence? Thus,  in  an  action  for  obtaining  property  under  false  pre- 
tences, a  complaint,  that  the  plaintiff  was  "  satisfied  "  that  the 
defendant  procured  certain  property  through  fraud,  &c.,  without 
any  other  allegations  of  fraud,  is  bad.  So  an  action  for  obtaining 
property  under  false  and  fraudulent  representations  cannot  be 
sustained,  if  it  appears,  on  the  face  of  the  complaint,  that  the 
representations  were  made  subsequent  to  the  obtaining  of  the 
property .'"^  So,  in  an  action  for  deceit  in  making  fraudulent  rep- 
resentations, a  count  which  does  not  allege  any  fraudulent  repre- 
sentation by  the  defendants,  nor  any  scienter,  nor  that  the 
representation  was  made  to  the  plaintiffs,  is  clearly  defective.* 
So  a  declaration  alleged,  that  the  defendants  falsely  and  fraudu- 
lently deceived  the  plaintifi"  in  this,  that  "they,  as  brokers  of  the 
plaintiff,  employed  by  him  to  purchase  oil,  falsely  represented  to 
him  that  they  had  purchased  for  him  twenty-five  tuns  of  palm  oil, 
to  arrive  by  the  Celma,  at  the  price  of  30/.  per  tun ; "  whereas,  in 
fact,  the  defendants  purchased  the  oil  on  the  terms  "  that  the  said 
twenty-five  tuns  were  sold,  and  would  be  delivered  to  the  plaintifi" 
after  and  subject  to  the  prior  delivery  of  800  tuns  of  palm  oil 
from  the  said  vessel; "  that  the  vessel  arrived  with  less  than  800 
tuns;  and  the   consequent  non-delivery  to  the  plaintifi"  of  the 

1  Roth  V.  Palmer,  27  Barb.  652.  Abraham  v.   Gray,   14    Ark.   301.      See 

2  Buttery.  Viele,  44  Barb.  166  ;  Moore    Union,  &c.  v.  Mott,  27  N.  Y.  (13  Smith) 
V.  Clucas,  24  Eng.  L.   &  Eq.   70 ;  Fank-     633. 

boner  v.  Fankboner,  20  Ind.  62 ;  Goodrich  ^  Snow  v.  Halstead,  1  Cal.  359. 

V.  Reynolds,  31  111.  490 ;  Jenkins  v.  Long,         *  Behn  v.  Kemble,  7  C.  B.  (N.  S.)  260. 

19  Ind.  28;  Swope   v.  Fair,  18  Ind.  300; 


CH.    IV.]  TORT   AND   CONTRACT.  —  FRAUD.  287 

twenty-five  tuns,  and  loss  thereby.  The  facts  were  proved  as 
stated,  but  it  was  conceded  that  there  was  no  fraudulent  intention 
on  the  part  of  the  defendants.  Held,  an  action  was  not  maintain- 
able.^ "  If  the  words  '  falsely  and  fraudulently,'  in  the  declaration 
can  be  struck  out  and  a  good  cause  of  action  left,  they  may  be 
rejected,  as  in  the  case  of  a  declaration  for  the  warranty  of  a 
horse,  or  as  where  .  .  .  this  court  held,  that  a  plea  to  a  declaration 
on  a  policy  of  insurance,  averring  a  fraudulent  misrepresentation 
as  to  the  time  of  sailing  .  .  .  was  supported  without  any  proof 
of  fraud,  the  misrepresentation  affording  a  good  defence,  though 
not  fraudulent.  .  .  .  The  averment  that  the  defendants  falsely  and 
fraudulently  deceived  the  plaintiff  cannot  be  rejected  without 
striking  out  the  whole  cause  of  action.  All  that  follows  is  merely 
the  explanation  of  the  deceit."  So,  to  a  suit  on  a  note  for  the 
price  of  land,  the  plea  was,  that  the  plaintiff  falsely  represented, 
that  there  was  on  the  land  sufficient  material  to  build  a  barn, 
whereas  it  was  so  insufficient  that  it  cost  the  defendant  $600  to 
buy  enough  more.  Held  bad,  on  special  demurrer.  The  plea 
should  have  set  out  the  value  of  the  lumber  as  represented,  and 
as  it  in  fact  existed  at  the  time  of  the  sale,  that  being  the  measure 
of  damage.  It  seems,  also,  that  the  representation  should  have 
been  alleged  with  more  certainty ;  ''  enough  to  build  a  barn,"  is 
too  indefinite.  It  seems,  also,  that  the  representation  should  have 
been  alleged  to  have  been  fraudulent,  as  well  as  false.^  So,  if  a 
county  is  induced  to  subscribe  to  the  stock  of  a  railway,  in  pay- 
ment for  which  it  issues  negotiable  bonds,  by  fraud  and  misrepre- 
sentation ;  fraud  can  be  set  up  against  an  assignee  of  the  bonds, 
only  where  it  is  alleged  and  proved  that  he  is  not  a  bond  fide, 
holder.  The  plea  must  allege  why  or  how  he  is  not  a  hond  fide 
holder.  In  order  to  throw  upon  the  plaintiff  the  burden  of  show- 
ing that  he  obtained  the  instrument  hond  fide  and  for  value,  the 
defendant  must  allege  and  prove  that  he  took  it  overdue,  or  had 
notice,  or  gave  no  value.^  So,  in  replevin  for  a  mare,  claimed  to 
be  exempt  from  execution,  after  the  plaintiff  had  offered  evidence 
of  his  residence  in  Iowa,  the  defendant  offered  to  prove  that  the 
mare  was  sold  by  L.  &  L.,  of  Chicago,  Illinois,  to  N.  &  Co.,  of 
which  firm  the  plaintiff  was  a  member  ;  that  the  plaint! fT  then 
resided  in  Illinois  ;  that,  in  consideration  of  the  sale,  N.  &  Co.  made 

1  Thorn  V.  BiKland,  20  Eng.  L.  &  Eq.  '^  Kinney  v.  Osborne,  14  Cal.  112. 

467 ;  per  Parke,  B.,  ib.  409.  3  ciapp  v.  Cedar,  5  Clarke  (Iowa),  15. 


288  PLEADING.  [book    III. 

their  note  to  L.  &  L,,  whicli  note  was  executed  and  payable  in 
Illinois  ;  that  by  the  law  of  that  State  the  mare  was  not  exempt 
from  execution ;  that,  soon  after  the  making  of  the  note,  the  plaintiff, 
without  the  knowledge  of  L.  &  L.,  absconded  from  the  State  with 
the  property,  and  came  to  Dubuque,  in  Iowa,  where  he  was  pur- 
sued by  L.  &  L.,  who,  to  collect  the  note,  sued  out  a  writ,  of  at- 
tachment against  N.  &  Co. ;  and  that  under  that  writ  the  mare 
was  attached.  Held,  the  pleadings  did  not  present  the  issue  of 
fraud. ^  So  an  answer  to  an  action  upon  a  note,  that  "  the  note 
was  obtained  from  him  bj  fraud,  covin,  misrepresentations,  and 
deceit,"  is  bad  for  uncertainty .^  And  a  plea  of  fraud  should 
allege  a  scienter,  and  the  pleader's  reliance  on  the  false  repre- 
sentations.2  Thus  a  complaint  against  a  director,  for  falsely  and 
fraudulently  representing  that  the  stock  of  a  bank  is  worth  par, 
by  which  the  plaintiff  was  induced  to  purchase  stock  from  the 
bank,  when  in  truth  the  stock  was  worthless,  &c. ;  must  aver  that 
the  defendant  knew  that  the  stock  was  not  worth  what  he  repre- 
sented it  to  be,  and  made  the  representations  with  intent  to  induce 
the  purchase."*  So,  in  an  action  upon  a  note  given  to  a  railroad, 
a  plea  that  the  note  was  given  for  a  subscription  to  stock,  and 
through  misrepresentation  of  the  company's  agent  as  to  the 
amount  of  stock  taken  and  the  time  when  the  road  would  be  fin- 
ished, must  allege  that  the  representations  were  made  by  authority, 
and  known  to  be  false.^  (a) 

1  Newell  V.  Hayden,  8  Clarke  (Iowa),  3  White  v.  Watkins,  23  111.  480. 

140.  *  Maybey  v.  Adams,  3  Bosw.  346. 

■-'  Honeywell  v.  Helm,  19  Ind.  321.  5  Goodrich  v.  Eeynolds,  31  111.  490. 

(a)  Common  Pleas  (Penn.).  Motion  to  establish  the  matter  to  the  satisfaction  of 
quash  attachments.  the  judge,  and  as  each  judge  is  to  deter- 
Opinion  by  Pierce,  J.,  February  18th,  mine  what  is  satisfactory  to  him,  the 
1871.  —  Wherever  an  intent  or  a  fraud  is  affidavit  may  be  sufficient,  though  it  is 
charged  against  a  party,  the  particular  defective  in  stating  the  facts  and  circum- 
fact  or  fiicts  which  indicate  the  intent  or  stances,  or  the  particular  acts  of  fraud, 
fraud  should  be  stated  to  the  court  to  Yet  in  both  these  cases  the  affidavits  were 
enable  the  court  to  act  intelligently,  and  sufficient  to  justify  any  judge  in  issuing  a 
to  inform  the  adverse  party  of  the  par-  warrant  of  arrest.  But  the  Attachment 
ticular  matters  which  he  is  challenged  to  Act  of  1869  differs  from  the  Act  of  1842 
meet.  authorizing  warrants  of  arrests,  in  this ; 
Thus,  under  the  Act  of  1842,  authoriz-  that  whereas  by  the  Act  of  1842  no  war- 
ing warrants  of  arrest,  the  plaintiff  must  rant  of  arrest  can  issue  without  the  ap- 
set  out  in  his  affidavit  the  facts  from  which  proval  of  the  judge,  by  the  Act  of  1869  it 
the  judge  is  to  infer  whether  such  a  case  is  made  the  duty  of  the  prothonotary  to 
is  made  out  as  justifies  a  warrant :  Dough-  issue  the  attachment  upon  proof  by  affi- 
erty  v.  Dougherty,  6  P.  L.  J.  153.  And  davit  that  the  party  is  indebted,  and  is 
though  in  (iosline  v.  Place,  8  Casey,  520,  about  to  remove  his  goods  with  the  intent 
and  Berger  v.  Smull,  3  Wright,  302,  there  to  defraud  his  creditors,  or  to  do  any  of 
is  language  which  indicates  that,  as  in  the  other  matters  set  forth  in  the  act.  It 
warrants  of   arrest,   the    affidavit    is    to  does  not  even  say  that  the  proof  is  to  be 


CH.    IV.]  TORT    AND    CONTRACT.  —  FRAUD.  289 

§  10.  But  there  is  a  class  of  cases,  partly  depending:,  no  doubt, 
upon  statutory  modifications  of  the  common  law,  wliicli  a(U)pt  a 
less  rigid  rule,  (a)  Thus  the  allegation  of  an  answer,  that  the 
writing  sued  on  was  obtained  from  the  defendants  by  fraud,  covin, 
and  misrepresentation  of  the  plaintills,  is  held  good.  It  is  not  a 
mere  conclusion  of  law,  but  the  averment  of  a  substantive  and 
traversable  fact.^  So,  a  release  being  pleaded,  a  replication,  that  the 
release  was  obtained  by  fraud  and  misrepresentation,  without 
setting  out  particulars,  is  good.^  So,  in  an  action  to  recover  goods 
obtained  by  a  fraudulent  purchase^  the  vendor  may  declare  by  a 
general  claim  of  property,  and  give  in  evidence  the  facts  showing 
the  fraud.'^  So  where  the  complaint,  in  an  action  for  false  repre- 
sentations, sets  these  forth  as  representations  of  fact  made  by  the 
defendants  of  their  own  knowledge,  and  not  as  impressions  of 
opinion  or  belief;  alleges  that  they  were  false,  and  that  the  plain- 
tiff relied  on  them,  and  suffered  damage  thereby,  though  not  in 
terms  any  fraudulent,  wilful,  or  intentional  misrepresentation  : 
the  plaintiff  may  recover  upon  proof  of  those  fticts,  unless  the 
defendants  can  justify  their  representations.  Upon  these  facts, 
the  law  adjudges  fraud.^  So,  in  a  declaration  for  a  cheat  in  an 
exchange  of  horses,  it  is  not  necessary  particularly  to  describe  the 
unsoundness.^  So  it  is  a  good  declaration,  that  the  defendant, 
the  indorsor  of  a  note,  with  intent  to  deceive  the  indorsee,  falsely 
represented  that  the  maker  was  solvent,  and,  relying  thereon,  the 
plaintiff  accepted  the  note.^  So  where  the  declaration  alleged  a 
"  representation  that  a  mortgage  was  good,  and  a  valid  security  for 

1  Whitehead   v.   Root,    2   Met.    (Ky.)  admit  of  knowledge  on   the  part  of  tiie 

58-1.  plaintiff  as  to  its  particulars.) 

-  Iloitt  V.  Holconibe,  3  Fost.  535.   (Con-  -^  Bliss  v.  Cottle,  32  Barb.  822. 

taininjj;  an  elaborate  opinion,  in  wliicli  the  *  Sharp  v.  Mayor,  &c.,  40  Barb.  256. 

old   cases  on  tlie  subject  are  cited.     In  ^  Keeil  v.  Rogers,  3  Monr.  173. 

some  of  them,  the  ground  of  decision  is,  '^  Jamison  v.  Copher,  35  Mis.  483. 

that  covin  is  in  its  nature  too  secret  to 

made  to  the  satisfaction  of  the  prothono-  wliicii  he  is  called  to  answer,  e.xcept  in 

tar}',  but  the  act  seems  to    contemplate  the  most  general  terms, 

that  the  plaintiff  shall  put  on  record  sucli  These  attachments  are  quaslied. — Born 

legal  proof  by  affidavit  as  will  justify  the  v.  Zimmerman  (I'enn.);  Leg.  Intell.,  Feb. 

issuing  of  tlie  attachmout,  and  will  intbrm  24,  1871. 

the  defendant  why  his  goods  have  been  (<i)  An  answer  contained  only  a  general 

seized.  allegation  of  fraud,  and  the  trial  of  this 

The  affidavits  in  both  these  cases  charge  issue    ended     without    objection    to    the 

the  matters  complained  of  in    the  very  answer,   or  to   evidence   offered    by    the 

words  of  tiie  act  without  setting  forth  a  defendant.      Held,    an   objection    to   the 

single  fact  by  which  the  court   would  be  answer,  that  it  did  not  state  the  jiarticular 

enabled  to  know  whether  the  attachment  facts  and   circum.stancc's  coustitiiting  the 

had    properly    issued,    or    tlii'   defendant  fraud,  would  not  be  considered  on  appeal, 

informed  of  the  matters  complained  of,  King  v.  Davis,  34  Cal.  100. 

19 


290  PLEADING.  [book   III. 

payment  of  said  note,  and  the  plaintiff  supposed  and  verily  be- 
lieved, at  the  time  he  bought  the  same  as  aforesaid,  the  said  mort- 
gage to  be  good,  and  that  it  was  a  valid  and  sufficient  security  ; " 
held,  a  sufficient  averment  that  the  plaintiff  bought  on  the  faith  of 
such  representation. 1  So,  in  an  action  for  fraud,  the  declaration 
alleged  that  the  defendant,  to  induce  the  purchase,  fraudulently, 
&c.,  represented,  &c.,  and  warranted  the  premises  to  have  and 
contain  thereon  three  thousand  spruce  logs  (meaning  that  there 
were  spruce  trees  growing  thereon  that  would  cut  and  make  three 
thousand  spruce  logs  of  the  usual  and  customary  size  and  qual- 
ity), which  the  plaintiff  believed  to  be  true,  and,  not  knowing  to 
the  contrary,  bought  the  premises,  and  paid  for,  and  took  a  deed 
of  them  ;  and  the  representations  were  false  and  known  to  be 
false.  Held  good  on  demurrer.  The  plaintiff  might  prove,  under 
the  general  issue,  that  the  words  were  used  and  understood  in  the 
sense  alleged  by  the  innuendo,  and  in  that  sense  they  must  be 
taken  to  have  been  used  and  understood.  That  the  representa- 
tion was  mere  opinion  upon  a  point  of  which  either  party  alike 
could  judge,  was  matter  of  proof  under  a  traverse.^  So  an  ac- 
tion may  be  maintained,  upon  the  declaration  that  the  plaintiff 
bought  hogs  having  the  cholera,  for  a  sound  price,  represented  to 
be  sound  and  healthy,  but  known  to  be  otherwise ;  and  the  plain- 
tiff b(  ught  relying  upon  the  representations,  and  unable  by  rea- 
sonable diligence  to  ascertain  that  they  were  false.^  So  it  is  a 
good  answer  to  an  action  upon  a  note,  that  it  was  given  for  the 
last  instalment  on  a  stock  of  goods,  purchased  of  the  plaintiff, 
who  then  represented  it  to  be  worth  $3500,  and  that  it  would  in- 
voice that  sum  or  moi'e  ;  that  the  defendants  were  ignorant  of  the 
amount  and  value,  and  requested  an  invoice,  but  the  plaintiff 
said  he  had  no  time  to  make  it ;  that  the  purchase  was  made  on 
this  representation,  but  it  was  knowingly  false  ;  and  the  goods 
invoiced  and  amounted  to  only  $1500.'*  And  it  is  held,  that, 
although  it  may  be  necessary,  under  English  rules  of  pleading,  to 
charge  a  fraudulent  intent,  where  the  fraud  consists  in  the  in- 
tention ;  yet  it  is  not  so  in  Texas,  where  fraud  is  a  conclusion  to 
be  drawn  from  the  facts  specially  alleged  in  the  petition,  and 
where  the  existence  of  those  facts,  and  not  the  fraudulent  intent, 
is  the  gist  of  the  inquiry.^ 

1  Hahn  v.  Doolittle,  18  AYis.  196.  *  Davis  v.  Jackson,  22  Ind.  233. 

2  Wliitton  V.  Goddard,  36  Venn.  730.  *  Carter  v.  Carter,  5  Tex.  93. 
s  Baker  v.  M'Ginnis-s,  22  Ind.  257. 


CH.    IV.]  TORT   AND    CONTRACT.  —  FRAUD.  291 

§  11.  Questions  on  the  same  subject  also  arise,  in  reference  to 
tlie  parties  wlio  suffer  or  commit  the  wrong  complained  of. 

§  12.  A  complaint,  in  form  a  creditor's  bill,  praying  that  land 
conveyed  away  fraudulently  as  against  creditors  may  be  applied 
in  payment  thereof,  must  make  the  grantee  a  party  to  the  suit. 
Thus  five  judgments  were  recovered  by  the  plaintiffs  against  A, 
upon  which  were  unsatisfied  executions.  Previous  to  the  judg- 
ments, A  owned  certain  real  property,  which  he  conveyed  to  B, 
without  consideration,  and  with  intent  to  defraud  his  creditors, 
and  A  had  other  equitable  interests  which  ought  to  be  applied  on 
the  judgments.  Prayer  to  set  aside  the  conveyance,  and  for 
equitable  relief,  &c.  No  equitable  pi'operty  was  discovered,  and 
it  appeared  that  the  real  estate  had  been  conveyed,  before  suit 
commenced,  to  C,  who  was  not  made  party.  Held,  C  must  be 
made  a  party.^ 

§  13.  For  an  injury  against  the  common  property  of  husband 
and  wife,  or  the  business  carried  on  by  means  of  such  property, 
the  husband  should  bring  suit  alone.  Hence  where  a  suit  for 
deceit  was  brought  by  a  husband  and  wife,  averring  that  the  plain- 
tiffs had  been  induced  to  make  a  worthless  purchase  by  false 
representations  of  the  defendant ;  but  not  that  the  wife  had  any 
separate  interest  in  the  purchase-money,  or  in  the  business  for 
which  the  purchase  was  made :  held,  a  demurrer  for  misjoinder 
of  parties  was  good.^ 

§  13  a.  So  where  a  complaint  alleged  fraud  on  the  part  of  the 
defendant,  in  procuring  a  husband  and  wife  to  convey  to  him 
their  homestead,  promising  therefor  to  convey  to  them  other 
land,  to  which  he  had  no  title,  but  not  that  the  title  was  not 
wholly  in  the  husband ;  held,  the  wife  was  improperly  joined 
as  plaintiff.^ 

§  14.  But,  upon  a  charge  of  fraud,  the  law  does  not  require,  as 
in  case  of  contract,  proof  of  privity  between  the  parties  to  the 
suit.  Thus  a  declaration  alleged,  that  the  defendant  and  others 
had  formed  a  company,  upon  a  principle  known  as  societe  anonyme, 
in  Spain,  the  capital  of  which  was  96,000  shares  of  1/.  each,  out 
of  which  12,000  were  to  be  appropriated  to  the  public,  at  12s.  GcZ. 
per  share,  free  from  all  further  calls,  and  that  the  said  12,000 
shares  were  actually  offered  to  the  public  ;  that  the  defendant,  as 
such  promoter  and  managing  director,  intending  to  deceive  the 

1  Sage  V.  Mosher,  28  Barb.  287.  3  Read  v.  Lang,  21  Wis.  678. 

2  Barrett  v.  Tewksbury,  18  Cal.  334. 


292  PLEADING.  [book    III. 

public,  and  to  cause  it  to  be  publicly  represented  and  advertised 
that  the  said  company  was  likely  to  be  a  safe  and  profitable  under- 
taking, and  also  to  deceive  the  public  who  might  become  pur- 
chasers of  the  said  12,000  shares,  and  to  induce  them  to  become 
such  purchasers,  falsely,  fraudulently,  and  deceitfully  caused  it 
to  be  publicly  advertised  and  made  known,  in  and  by  a  prospectus 
issued  by  the  defendant  as  such  director  (inter  alia),  that  the 
promoters  of  the  said  company,  in  proposing  to  issue  to  the  public 
the  said  12,000  shares  at  12s.  6c?.  per  share,  free  from  all  further 
calls,  did  not  hesitate  to  guarantee  to  the  bearers  of  the  said 
12,000  shares  a  minimum  annual  dividend  of  2>Zl.  per  cent.,  pay- 
able in  half-yearly  dividends  of  IQl.  10s.  per  cent,  each,  and  that 
the  said  guaranty  should  remain  in  force  until  the  said  12s.  Gc?. 
per  share  should  be  tiius  repaid  to  the  shareholder ;  that  the  de- 
fendant, by  means  of  the  said  false,  fraudulent,  and  deceitful  rep- 
resentation, fraudulently  induced  the  plaintiff  to  become,  and  the 
plaintiff,  by  reason  thereof,  became,  the  purchaser  and  bearer  of 
2500  of  the  said  12,000  shares  at  12s.  Qd.  per  share,  and  by 
means  of  the  premises  the  plaintiff  was  induced  to  pay,  and  did 
pay,  12s.  Qd.  for  each  of  the  said  shares ;  whereas,  in  truth  and  in 
fact,  at  the  time  of  making  the  said  statement,  the  same  was  false 
and  fraudulent  to  the  knowledge  of  the  defendant,  and  the  de- 
fendant had  no  ground  whatever  for  offering  such  guaranty  to  the 
public,  as  the  defendant  well  knew  ;  by  means  whereof  the  plain- 
tiff had  lost  the  money  so  paid  by  him  as  aforesaid.  Held,  a 
sufficient  allegation  of  a  false  representation  by  the  defendant, 
and  that  the  plaintiff  was  entitled  to  judgment,  as  there  was  no 
necessity  for  any  privity  between  the  parties.  The  court  com- 
ment upon  the  argument,  that  the  action  could  not  be  maintained, 
because  it  ''  did  not  arise  from  any  public  wrong  or  the  neglect 
of  any  public  duty.  ...  The  doctrine  .  .  .  cannot  apply  to  an 
action  founded,  irrespective  of  a  contract,  upon  a  false  representa- 
tion fraudulently  made  by  the  defendant  to  the  plaintiff,  for  the 
purpose  of  inducing  the  plaintiff  to  act  upon  it,  the  plaintiff  show- 
ing that  by  so  acting  upon  it  he  had  suffered  damage.  Under 
such  circumstances,  although  the  parties  be  entire  strangers  to 
each  other,  the  action  lies."  ^  (a) 

1  Gerlicard  v.  Bates,  20  En^.  L.  &  Eq.     (Upon  another  count  founded  on  contract 
129;  per  Lord  Campbell,  C.  J.,  ib.   137.    judgment  was  rendered  for  the  defendant.) 

(a)  The  counsel  for  the  defendant  asked  :     were,  with  a  view  of  inducing  persons  to 
"  Suppose  a  person  coming  from  a  colony    emigrate  there,  to  publish  a  book  giving  a 


CH.  IV.] 


TORT  AND  CONTRACT.  —  FRAUD. 


293 


§  15.  Questions  also  arise  in  reference  to  the  joinder  of  parties. 
Tims  in  an  action  against  several,  for  fraudulently  inducing  the 
plaintiff  to  buy  an  interest  in  a  patented  machine,  an  averment 
that  the  defendants  conspired  together  to  defraud  the  plaintiff 
need  not  be  proved.  "  The  gist  of  the  action  was  not  the  con- 
spiracy, but  the  damage."  ^  But  in  an  action  against  A  &  B,  a 
partnership,  for  fraudulent  representations  made  by  A,  one  of  its 
members  ;  a  declaration  alleging  that  he,  acting  in  behalf  of  the 
firm,  procured  a  writ  of  replevin  to  be  brought  in  the  name  of  a 
third  person,  and  signed  his  own  name  to  the  replevin  bond  as 
surety;  and  that  he  declared  to  the  plaintiff,  who  was  a  deputy- 
sheriff,  that  tlie  firm  was  responsible,  and  that  his  signature  to  the 
bond  bound  the  firm,  and  that  he  was  authorized  by  the  firm  to 
bind  it  by  his  signature  alone,  and  thus  induced  the  plaintiff  to 
accept  the  bond  and  to  serve  the  writ,  whereby  the  firm  obtained 
and  disposed  of  the  goods  replevied  for  its  own  benefit;  and  that 

1  Ilayward  v.  Draper,  3  Allen,  551 ;  per  Hoar,  J.,  ib.  552. 


false  account  of  the  colony,  could  any  one 
who  enii<Tratecl  on  the  faith  of  what  he 
there  read  brinu  an  action  against  the 
autiior?"  To  which  Lord  Campbell  re- 
plied in  the  affirmative,  if  he  published  it 
with  the  intention  that  it  should  be  so 
acted  upon.     20  Eng.  L.  &  Eq.  134. 

A  recent  case  in  Is'ew  York  contains  an 
elaborate  opinion  upon  the  important 
question,  how  far  one  party  may  be  liable 
to  another  for  false  representations,  not 
made  directly  to  the  latter,  but  influenc- 
ing his  action  and  resulting  in  pecuniary 
loss.  Tlie  court  remark :  "  The  com- 
plaint does  not  state  tliat  these  represen- 
tations were  made  to  the  plaintiff  .  .  .  nor 
.  .  .  that  the  plaintiff  .  .  .  came  to  the 
knowledge  of  tliem.  .  .  .  The  rejiresenta- 
tions  .  .  .  are  charged  to  have  been 
uttered  in  published  reports  and  state- 
ments of  the  condition  and  property  of 
this  company,  made  and  signed  by  him 
as  one  of  its  otfieers,  and  generally  and 
publicly  circulated  and  advertised.  .  .  . 
A  question  very  similar  was  presented  to 
the  Superior  Court  of  the  city  of  New 
York,  in  Cross  r.  Sackett  (2  Bosw.  G17), 
and  althougli  the  doctrine  of  Lord  Camj)- 
bell  was  severely  questioned  by  eminent 
counsel,  it  was  sulistantially  accepteil. 
.  .  .  The  defendant  hail  no  interest  in  the 
stock  which  tlie  plaintiff  was  induced  to 
purchase,  ami  reaped  no  benefit  from  the 
contract.  The  doctrine  ...  is  that  a 
statement  made  to  the  public  and  de- 
signed to  influence  the  public,  is  designed 


to  influence  every  individual  who  is  inter- 
ested. .  .  It  is  not  necessary,  however, 
to  go  as  far  as  the  courts  have  gone  in 
these  cases  .  .  .  since  the  defendant 
.  .  .  was  privy  to  the  contract  .  .  .  and 
interested  in  the  sale  which  was  induced. 
The  case  of  the  National  P^xchange  Co.  v. 
Drew  (32  Eng.  L.  &  Eq.  p.  1),  is  in  this 
respect  more  nearly  analogous.  .  .  .  That 
was  a  case  in  the  House  of  Lords.  .  .  . 
It  was  held,  .  .  .  that  a  joint  stock  com- 
pany would  be  bound  by  the  fraudulent 
statements  of  their  directors,  whereby 
third  parties  were  induced  to  contract 
with  them,  although  .  .  .  made  in  reports 
submitted  by  the  directors  to  annual 
meetings.  ...  A  liability  was  atlmitted  ; 
the  onl3-  question  was  whether  it  attached 
to  the  com])any.  ...  In  the  present  case 
the  responsibility  is  cast  upon  the  individ- 
ual who  made  the  representations,  and 
the  same  individual  profited  by  them. 
Anotiier  still  more  recent  case  in  the 
House  of  Lords  is  Bagshaw  ?•.  Sevniour, 
reported  in  4  Com.  B.  Kep.  (N.  S.)  873, 
wliere  an  action  was  maintained  against  a 
chairman  of  a  company  who  had  procured 
its  shares  to  be  put  on  the  stock  list  of  the 
e.xchange  by  falsely  stating  in  a  jirosjiec- 
tus,  and  in  a  letter  to  the  committee  of  the 
stock  e.vcliange,  that  its  eajntai  was  paid 
up.  The  action  was  by  a  jierson  who 
had  been  induced  to  buy  some  of  the 
shares."  Per  Emott  J.,  Newbery  v.  Gar- 
land, 31  Barb.  128. 


294  PLEADING.  [book   III. 

judgment  was  rendered  for  the  defendant  in  replevin,  and  the 
goods  were  not  returned,  and  the  firm  was  not  bound  by  the 
signature  to  the  bond,  and  the  plaintiff  has  been  held  liable  for 
taking  an  insufficient  bond ;  —  does  not  set  forth  sufficient  facts  to 
charge  the  other  partner  in  the  fraud.  The  declaration  alleges 
facts,  tending  to  show  that  the  wrongful  act  of  A  became  the  tort 
of  both  defendants ;  but  the  fact  intended  to  be  put  in  issue  is 
stated  so  indirectly  and  argumentatively,  that  the  court  cannot 
draw  from  the  averments  the  legal  inference  that  the  defendant  B 
is  liable.^ 

§  16.  In  an  action  for  deceit  in  a  sale  of  stock,  by  the  de- 
fendant, through  A,  his  agent,  and  to  enforce  the  plaintiff's  lien 
as  vendor  upon  the  land  conveyed  in  payment ;  it  appeared  that 
A  acted  only  as  agent,  that  the  stock  was  in  fact  sold  by  the  de- 
fendant, and  that  the  land  conveyed  to  A  had  been  conveyed  to 
the  defendant  before  the  suit.  Held,  A  was  not  a  necessary 
party  .2 

§  17.  In  the  same  connection  may  be  considered  the  joinder  of 
different  causes  of  action. 

§  18.  Several  causes  of  action,  all  arising  out  of  frauds  alleged 
to  have  been  practised  by  the  defendant,  a  bank  director,  through 
misrepresentations  made  to  the  plaintiff  and  neglect  of  duties  re- 
quired by  the  statute,  may  be  joined  in  one  declaration.^ 

§  19.  It  is  the  general  rule,  that  a  count  for  deceit  in  the  sale 
of  goods  cannot  be  joined  with  one  in  assumpsit  on  a  warranty  of 
soundness.* 

§  19  a.  A  petition  containing  two  counts,  one  in  ejectment,  and 
the  other  in  the  nature  of  a  bill  in  equity,  asking  to  have  a  con- 
veyance set  aside  as  fraudulent,  and  the  estate  vested  in  the  plain- 
tiff; is  bad  for  misjoinder.^ 

§  19  h.  Under  the  (N.  Y.)  Code,  allowing  several  causes  of 
action  for  injuries  to  property  with  or  without  force  to  be  joined ; 
a  cause  of  action,  for  inducing  the  plaintiff  by  false  representa- 
tions to  buy  property  for  more  than  its  value,  and  a  cause  for 
taking  and  converting  property,  may  be  joined.^ 

§  20.  Questions  of  variance  often  arise  in  connection  with  actions 
for  fraud.    In  New  York  it  is  held,  in  a  case  of  this  nature,  that  a 

1  Gray  v.  Cropper,  1  Allen,  337.  12.     But  see  Patterson   v.  Kirkland,  34 

2  Newbery  v.  Garland,  31  Barb.  121.        Miss.  423. 

8  Maybey  v.  Adams,  3  Bosw.  346.  5  Gray  v.  Payne,  43  Mis.  203. 

*  Chamberlain  v.  Robertson,  7  Jones,         ^  Cleveland  v.  Barrows,  59  Barb.  364. 


CH.    IV.]  TORT   AND   CONTRACT.  —  FRAUD.  296 

variance  between  the  complaint  and  the  case  proved  is  material, 
and  cannot  be  cured  by  conforming  the  pleadings  to  the  facts 
proved.  (Code,  §  173.)  And  in  such  case  the  plaintiff  cannot 
have  judgment,  under  §  275  of  the  Code,  because  the  relief 
which  the  proofs  would  warrant  is  not  '*  consistent  with  the  case 
made  by  the  complaint  and  embraced  within  the  issue."  Com- 
plaint, that  the  plaintiff  employed  the  defendants,  as  brokers,  to 
purchase  for  him  on  credit  certain  shares  of  stock,  and  delivered 
to  them  other  stock  as  security  for  their  indemnity,  and  that  they 
afterwards  rendered  him  an  account  of  such  purchase  and  of  a 
subsequent  sale,  after  notice,  both  of  which  transactions  were  not 
real,  but  fictitious.  Also,  that  a  charge  in  such  account  rendered, 
for  negotiating  a  loan  upon  the  stock,  was  also  fictitious,  and 
praying  judgment  thereupon,  that  defendants  return  the  stock  so 
delivered  to  them  as  security.  It  was  found,  that  the  defendants 
made  the  purchase  according  to  their  employment,  and  advanced 
the  money  therefor,  and,  in  order  to  the  holding  of  the  stock  for 
the  period  contemplated  by  the  plaintiff,  negotiated  a  loan  thereon  ; 
but  also,  that  the  defendants  had  sold  the  stock  for  a  price  greater 
than  that  at  which  they  accounted  to  the  plaintiff.  Held,  the 
plaintiff  was  not  entitled  to  damages  for  the  value  of  the  stock  so 
purchased,  as  upon  an  illegal  conversion  of  this  stock. ^  So,  in 
an  action  by  the  vendor  of  goods  fraudulently  obtained,  against 
the  consignees  of  the  vendee,  who  had  made  advances  upon  the 
goods,  it  is  not  competent  for  the  plaintiff,  under  an  allegation 
that  the  consignees  received  the  goods  with  knowledge  of  the 
fraud,  and  without  paying  any  consideration  therefor,  to  claim  a 
recovery,  on  the  ground  that  the  advances  were  made  upon  a 
usurious  contract;  even  though  the  usury  appears  by  the  defend- 
ant's own  evidence.  The  court  remark  :  "  The}'  had  brought  their 
action  and  rested  their  claim  upon  a  totally  distinct  ground.  The 
questions  were,  whether  the  defendants  were  cognizant  of  the 
fraud"  (in  the  purchase  of  goods),  "or  had  paid  any  considera- 
tion. Because  proof  incidentally  appeared  on  the  trial  of  those 
questions  tending  to  show,  that,  though  an  advance  had  been  made, 
it  was  under  a  usurious  agreement,  that  was  not  a  point  in  issue. 
The  plaintiffs  had  not  alleged  it.  The  defendants  did  not  come 
to  trial  to  meet  it.     Incidental  proof  could  not  avail."-     So  if  the 

1  Saltus  V.  Genin,  3Bosw.  250.  2  Williams  v.  Birch,  G  Bosw.  299 ;  per 

Woodrufl",  J.,  ib.  c!07. 


296  PLEADING.  [book   III. 

averment  of  unsoundness,  in  an  action  for  fraudulent  misrepresen- 
tations as  to  tlie  soundness  of  a  horse,  contain  an  allegation  of  the 
particular  form  of  unsoundness;  although  unnecessary,  it  must 
be  proved  as  laid.^  So,  in  an  action  for  deceit,  a  declaration,  that 
the  representations  Avere  well  known  by  the  defendant  to  be  un- 
true, is  not  supported  by  proof  of  reasonable  cause  to  believe 
that  they  were  untrue.^ 

§  20  a.  So  if,  in  an  action  for  fraudulent  representations  and 
concealment  in  an  alleged  contract,  the  contract  proved  is  less 
beneficial  than  that  alleged,  in  a  particular  which  might  mate- 
rially affect  the  amount  of  damages  ;  such  variance  is  fatal.'^ 

§  21.  But  the  fraud  of  an  agent,  authorized  by  his  principal,  is 
well  pleaded  as  the  fraud  of  the  principal.  "The  same  rule  of  law 
which  imputes  to  the  principal  the  fraud  of  the  agent,  and  makes 
him  answerable  for  the  consequences,  justifies  the  allegation  in 
pleading  that  the  principal  himself  committed  the  Avrong."  *  So  a 
plaintiff  may  prove  alleged  misrepresentations  in  the  sale  of  a 
certain  described  parcel  of  land,  by  a  deed  of  this  parcel  and 
another  annexed  to  his  petition.^  So,  although  he  averred  pay- 
ment of  1400  for  the  tract  in  dispute,  and  the  deed  mentioned 
$400  as  the  consideration  for  both ;  held,  as  the  deed  was  not  con- 
clusive on  this  point,  there  was  no  variance.^  So  a  declaration 
alleged,  that  the  plaintiff  assumed  prosecution  of  a  contract  of 
work,  commenced  for  the  defendant  by  A,  who  had  become  unable 
to  carry  it  on,  being  induced  by  the  defendant's  false  and  fraud- 
ulent representations  that  there  would  be  no  risk,  and  that  the 
defendant  had  in  his  hands  sufficient  funds  due  to  A.  The  evi- 
dence showed  that  the  defendant,  being  inquired  of  on  behalf  of 
the  plaintiff,  said  that  there  would  be  funds  enough  to  complete 
the  undertaking,  if  A  went  on  and  finished  it,  and  that  the  plain- 
tiff was  thereby  induced  to  go  on,  though  the  plaintiff  testified 
that  he  did  not  mean  to  assume  the  job,  but  only  to  assist  the  de- 
fendant. Held,  sufficient  to  sustain  the  declaration.  "  Giving 
proper  effect  to  the  testimony,  the  conclusion  might  fairly  be  de- 
duced from  it,  that  the  defendant  did  make  the  representations 
which  are  set  forth."  ' 

1  Lindsay  v.  Davis,  30  Mis.  406.  5  Jones  v.  Smith,  6  Clarke  (Iowa),  229. 

-  Pearson  v.  Howe,  1  Allen,  207.  ^  Ih. 

a  Gotlieb  V.  Leaeli,  40  Vt.  278.  f  Norton  v.  Huxley,  13  Gray,  285;  per 

*  Bennett    v.   Judson,   21    N.   Y.    (7  Merrick,  J.,  ib.  291. 
Smith)  238;  ib.  240,  per  Comstock,  C.  J. 


CH.  IV.]         TORT  AND  CONTRACT.  —  FRAUD.  297 

§  21  a.  In  case  for  the  loss  of  a  slave  who  was  killed  while 
working  on  the  defendant's  house,  a  declaration  averring  fraud- 
ulent concealraent  by  the  defendant  of  the  dangerous  condition  of 
the  house,  and  also  fraudulent  representations  that  it  was  safe  ; 
was  held  not  demurrable  for  duplicity.  The  latter  averment 
might  be   stricken   out  as   surplusage.^ 

§  22.  If  the  declaration,  in  an  action  of  tort  for  deceit  in  the 
sale  of  property,  sets  forth  some  representations  which  are  action- 
able, and  some  which  are  not ;  a  new  trial  will  not  be  granted, 
after  a  verdict  for  the  plaintiff,  on  account  of  an  instruction  to 
the  jury,  that  "  the  plaintiff  can  maintain  his  action  only  by 
proof  that  he  was  induced  to  purchase  the  property  by  one  or 
more  of  the  representations  alleged  in  the  declaration  to  be 
false  and  fraudulent,  and  proved  to  be  such  ;  "  if  the  judge  did 
not  further  instruct  them,  that  the  plaintiff  might  maintain  his 
action  by  proof  of  those  representations  which  are  not  actionable.^ 

§  22  a.  Declaration,  that  the  defendant  requested  the  plaintiff 
to  lend  him  a  sum  of  money,  and  falsely,  deceitfully,  and  fraudu- 
lently represented  himself  of  full  age,  and  that  the  plaintiff,  con- 
fiding in  the  truth  of  that  representation,  lent  him  money  on 
certain  conditions ;  that  the  defendant  at  the  time  of  making  the 
representation  was  an  infant,  as  he  himself  well  knew,  and  re- 
fused to  repay  the  loan  or  comply  with  the  conditions,  to  the 
damage  of  the  plaintiff.  The  court,  suggesting  that  there  was 
no  cause  of  action,  (a)  granted  leave  to  the  defendant,  under 
the  15  &  16  Vict.  c.  76,  §  80,  to  demur  to  this  declaration,  and 
plead  not  guilty,  with  a  traverse  that  the  plaintiff  confided  in  the 
alleged  fraudulent  representation,  on  an  affidavit  of  the  defend- 
ant's attorney,  that  he  was  informed  and  believed  that  the  de- 
fendant had  just  cause  to  plead  those  pleas,  and  that  the  declar- 
ation would  be  held  bad  in  substance  on  demurrer,  and  that  the 
objections  raised  to  it  by  the  demurrer  were  good  and  valid  objec- 
tions in  law.'^  (^) 

1  Perry  v.  Marsli,  25  Ala.  659.  3  Price  v.  Ilewett,  18  Eng.  L.  &  Eq. 

2  Pedrick  v.  Porter,  5  Allen,  324.  522. 

{a)  "Simple  fraud  gives  no  cause  of  the  record  that  he  had  made  a  fraudulent 

action  unless  the  party  is  damaged  by  it."  misrepresentation."     The    requisition    ot 

Per  Parke,  B.,  18  Eng.  L.  &  Eq.  524.    See  the  statute  referred  to,  —  wliicli  enables 

Jolin>on  V.  Pye,  1  Sid.  258.  the  courts  to  authorize  a  jjlea  and  demur- 

{h)  The  court  remarked  :  "Itwotddbe  rer  of  tlie  same  matter,  —  that  the  party 

a  discredit  to  the  defendant  to  admit  on  shall  swear  to  the  truth  in  substance  and 


298  PLEADING.  [book   III. 

§  23.  In  reference  to  the  defence,  of  fraud  on  the  part  of  the 
plaintiff;  it  is  held  that,  unless  a  party  who  sets  up  fraud,  as  a 
defence  to  an  action  on  a  contract,  aver,  in  his  answer,  that  he  has 
done  all  in  his  power  to  restore  the  plaintiff  to  his  former  condi- 
tion, he  cannot  show  it  at  the  trial. ^     But  a  plea  which  sets  up, 
as  a  defence  to  an  action  for  purchase-money,  that  the  sale  was 
illegal,  need  not  offer  to  return  the  property .^     So,  in  an  action 
on  a  draft  given  for  a  horse,  the  defendant  pleaded,  that  the  plain- 
tiff, intending,  &c.,  did  not  perform  his  promise,  but  deceived  and 
defrauded  the  defendant,  in  this,  to  wit :  that  the  said  horse,  at 
the  time  of  making  said  promise,  and  at   the  time  of  said  sale 
and  delivery,  was  not  sound,  but  on  the  contrary  was  unsound, 
whereby  said  horse  became  and  was  of  no  use  or  value  to  this 
defendant.     Held,  a  sufficient  averment  of  breach  of  warranty  of 
soundness  on  general  demurrer,  though  the  plea  contained  no 
offer  to  return  the  horse.^    And  in  a  suit  by  a  vendor  to  set  aside 
a  sale  induced  by  the  vendee's  fraud,  and  for  an  account,  the  plain- 
tiff being  a  partner  of  the  defendant,  and  his  interest  being  the 
property  sold  ;  an  averment,  that  the  defendant  owes  the  plaintiff 
more  than  the  sum  paid  for  the  interest,  amounts  to  an  offer  to 
credit  the  defendant  with  that  amount,  and  therefore  sufficiently 
offers,  upon  rescission  of  the  sale,  to  place  the  defendant  in  statu 
quoA 

§  23  a.  Where  the  defendant  answered,  to  a  suit  upon  a  judg- 
ment, that  such  judgment  had  been  secured  by  fraud  in  his 
absence,  and  that,  as  soon  as  he  was  aware  of  the  judgment,  and 
within  the  time  allowed  by  law,  he  was  about  to  commence  pro- 
ceedings to  set  it  aside,  but  the  plaintiff,  in  consideration  that  he 
would  not,  and  of  the  release  of  the  claim  which  he  then  held 
against  the  plaintiff,  promised  to  satisfy  and  release  such  judg- 
ment, (fee.  ;  held,  a  good  answer.^ 

§  23  b.  An  answer  to  an  action  upon  a  note  is  sufficient,  which 
alleges  that  the  note  was  given  in  payment  for  the  last  instalment 
on  goods  purchased  of  the  plaintiff,  represented,  at  the  date 
of  purchase,  to  be  worth  $3500,  and  that  it  would  invoice  that 

1  Devendorf  z'.Beardsley,  23  Barb.  656.         *  Watts  v.  "White.  13  Cal.  321. 

2  Barker  v.  Justice,  41  Miss.  240.  5  Stone  v.  Lewman,  28  Ind.  97. 
8  Palmer  v.  Wilks,  17  Tex.  105. 

in  fact  of  the   matters  proposed   to   be    sion  and  avoidance,  not,  as  in  tliis  case,  of 
pleaded  ;  applies  only  to  pleas  in  confes-    denial. 


CH.    IV.]  TORT   AND    CONTRACT.  —  FRAUD.  299 

amount  or  more ;  that  the  defendants  were  ignorant  of  the  amount 
and  value  of  the  stock,  and  requested  an  invoice  before  purchas- 
ing ;  but  the  plaintiff  said  he  had  no  time  to  make  it,  but  assured 
them  that  he  knew  the  goods  would  amount  to  more  than  $3500  ; 
that  the  defendants  purchased  on  this  representation ;  but 
that  it  was  false,  and  known  to  be  so  by  the  plaintiff  when  he 
made  it ;  and  that  the  goods  invoiced  and  amounted  to  but 
$1500.1 

§  23  c.  In  an  action  by  the  assignee  of  a  contract  to  deliver  to 
A  certain  watches,  the  answer  alleged,  that  A  imported  the 
watches  without  paying  the  duties,  and  afterwards  sold  them  to 
W ;  that  the  defendant,  after  such  sale,  to  settle  two  suits,  one  in 
favor  of  A  and  both  against  W,  executed  the  contract  in  igno- 
rance of  the  smuggling,  and  that,  after  its  execution,  but  before 
the  time  for  delivery  of  the  property,  it  was  seized  by  the  gov- 
ernment on  account  of  A's  smuggling  it,  and  subsequently  con- 
demned and  sold  ;  that  the  plaintiff,  before  taking  the  assignment, 
knew  all  these  facts,  and  that  it  was  made  without  consideration 
and  to  defraud  the  defendant.  Held,  the  answer  was  insuffi- 
cient, as  it  did  not  show  but  that  the  defendant  executed  the 
contract  as  principal  (and  not  merely  as  surety  for  W),  and  on  a 
new  consideration  not  connected  with  the  sale  of  the  goods  to 
W,  and  as  it  did  not  connect  the  defendant  with  the  title  from  A 
to  W.2 

§  23  d.  Where  one  who  claimed  by  an  assignment  for  the  benefit 
of  creditors,  executed  in  the  State  of  Maryland,  alleged  in  his 
answer  ''  that  the  assignment  was  valid,  according  to  the  laws  of 
Maryland,"  and  a  reply  in  denial  of  the  answer  was  filed ;  held, 
under  the  issue  joined,  evidence  that  the  assignment  was  void  by 
reason  of  actual  fraud  was  properly  admitted.-^ 

§  23  e.  In  assumpsit,  for  money  had  and  received,  the  defend- 
ant pleaded  a  discharge  in  bankruptcy.  The  plaintiff  replied 
that  in  the  proceedings  of  the  defendant,  in  obtaining  his 
discharge,  he  was  guilty  of  fraud,  and  of  wilful  concealment 
of  property  and  rights  of  property.  The  defendant  rejoined, 
traversing  the  fraud  and  wilful  concealment,  and  concluding 
to    the  country.      Held,  on   demurrer,  the    rejoinder  was   bad ; 

1  Davis  V.  Jackson.  22  Ind.  233.  3  Whitney  v.  Lehmer,  26  Ind.  503. 

2  Webber  v.  Koddis,  22  Wis.  61. 


300  PLEADING.  [book   III. 

that  the  reph'cation  was  bad  also,  in  attempting  to  put  in  issue 
several  distinct  matters;  and  that  the  plea  was  good,  though 
it  contained  no  specific  averments  that  the  debt  was  provable, 
or  that  the  defendant  had  received  a  certificate,  or  that  notice  of 
a  hearing  was  given  to  the  creditors,  before  the  discharge  was 
granted.^ 

»  Weld  V.  Locke,  18  N.  H.  14L 


CH.    v.] 


PLEADING   IN   TRESPASS. 


301 


CHAPTER   Y. 


PLEADING   IN   TRESPASS. 


statutory  law;  action 
of  property, 


1.  General  remark; 
of  trespass. 

3.  Declaration;   description 
&c. 

8.  Statutory  trespass. 

9.  Time ;  conliniinndo.  Sec. ;  number. 

16.  Pleas  in  trespass;  general  issue;  justi- 
fication. 

17.  Statutory  moditications. 

27.  Pleading  of  title  before  justices  of  the 
peace. 


34.  Miscellaneous  pleas. 

37.  Joinder  of  action;  trover;  different 
trespasses;  several  counts. 

4.5.  Replication. 

50.  New  assignment. 

58.  Joinder  of  trespass  and  other  forms  of 
action;  statutory  changes. 

68.  Trespass  to  the  person;  assault  and 
batterj*. 


§  1,  Having  considered  the  subject  of  pleading  in  actions  for 
torts,  generally,  we  proceed  to  a  view  of  pleading  in  the  particular 
actions  which  have  been  appropriated  to  particular  wrongs.  The 
remark  already  made  in  another  connection  may  be  here  properly 
repeated  ;  that  the  statutory  law,  which  has  so  extensively  oblit- 
erated the  technical  distinctions  or  boundaries  between  diflerent 
remedies,  has  still  left  untouched  many  of  the  principles  upon 
which  those  distinctions  depended. 

§  2.  In  no  form  of  action  are  the  rules  of  pleading  more 
numerous,  various,  and  precise,  than  that  of  trespass ;.  which  is  a 
common  remedy  for  immediate  and  forcible  injuries  to  personal 
and  real  property,  and  to  the  person  or  body,  (a)  This  action 
will  make  the  subject  of  the  present  chapter. 


{n)  Under  the  (N.Y.)  Code  of  Procedure, 
the  plaintiff  may  unite  in  the  same  com- 
plaint a  claim  to  recover  real  property, 
with  (lamatres  for  the  withholding.  Van- 
devoort  v.  (iould,  315  N.  Y.  G3',t. 

A  declaration  may  join  a  count  in  tres- 
pass, for  Ijrcaking  and  enterinjj;  the  ptain- 
tiff's  house,  with  a  count  for  maliciously 
and  without  probable  cause  procuring  a 
searcli-warrant,  and  entering  the  house, 
and  thereby  disturbing  his  possession, 
both  counts  being  for  the  same  breaking 
and  entering.  Winnie  v.  Pond,  34  Conn. 
391. 


Where  only  single  damages  are  recov- 
erable for  eacii  sort  of  trespass  com- 
plained of,  under  the  same  statute  ;  there 
is  no  misjoinder.  Graham  v.  Roark, 
•_'3  Ark.  19! 

Since  tiie  Common-law  Procedure  Act 
of  18.')2,  §  40,  a  count  for  breaking  and 
entering  the  ])remiscs  of  the  husband  may 
be  joined  with  a  count  by  the  husband 
and  wife  for  assaulting  and  imprisoning 
the  wife.  Morris  v.  Moore,  19  C  B. 
(N.  S.)  369. 


302  PLEADING.  [book    III. 

§  3.  Trespass  laid  with  a  quod  cum  or  whereas  is  held  bad  on 
general  demurrer,  and  cannot  be  amended  after  joinder.^ 

§  4.  In  trespass  for  taking  goods,  the  declaration  must  specify 
the  goods.2  Thus  a  declaration  for  taking  fish,  &c.,  or  divers 
goods  and  chattels,  is  bad.^ 

§  5.  In  trespass  for  taking  "  two  cows  at  A.,  and  also  a  load  of 
wheat,  the  goods  of  the  plaintiff  there  found :  "  the  words  *'  the 
goods  of  the  plaintiff  "  refer  only  to  the  wheat;  and  therefore  the 
trespass  for  taking  the  two  cows  is  ill  laid.* 

§  6.  In  actions  for  trespass  to  land,  the  locus  in  quo  should  be 
designated  by  abuttals,  or  other  description,  as  it  was  at  the  time 
of  the  trespass,  and  not  at  the  time  of  the  declaration,  (a)  There- 
fore, where,  in  an  action  by  a  reversioner,  the  declaration  described 
the  locus  ill  quo  as  "  abutting  on  the  south  and  east  on  a  close  in 
the  occupation  and  possession  of  the  defendants  ;  "  and  the  defend- 
ants (a  railwa}'-  company)  pleaded  that  they  took  possession  of  part 
of  the  said  close  abutting  on  the  south  on  the  fence  of  their  rail- 
way, under  the  provisions  of  the  8  &  9  Vict.  c.  20,  §§  32,  33  which 
was  the  trespass  complained  of;  and  it  appeared  at  the  trial,  that, 
at  the  time  of  the  trespass,  the  close  in  question  abutted  on  the 
fence  of  the  railway,  but  that  afterwards  the  defendants  took  pos- 
session of  and  purchased,  under  the  provisions  of  the  above  act, 
a  small  part  of  it  adjoining  the  railway,  so  that  the  plaintiff's 
description  was  correct  at  the  time  of  declaration,  but  not  at  the 
time  of  the  trespass  :  held,  the  plaintiff  could  not  recover  for 
want  of  a  new  assignment.^ 

§  6  «.  A  declaration,  that  the  defendant  broke  and  entered  "  cer- 
tain lands  of  the  plaintiff  covered  with  water,  being  the  bed  and 
channel  of  the  river  T.,  and  under  the  same,  in  the  several  parishes 
of  L.  and  L.,  in  the  county  of  G. ;  "  is  good,  on  special  demurrer.^ 

§  7.  The  court  cannot  restrict  the  plaintiff  in  his  proof  to  any 
less  number  of  lots  than  he  has  described  in  his  declaration." 

1  Holbrook  v.  Pratt,  1  Mass.  96.  ^  Humphrey  v.  The  London,  &e.,  12 

2  Bertie  r.  Pickering,  4  Burr.  24-55.  Eng.  L.  &  Eq.  554. 

3  Com.  Dig.  Pleader,  C.  2L  ''  Duke  of  Beaufort  v.  Vivian,  12  Eng. 

4  Jose  V.  Mills,  6  Mod.  15.  L.  &  Eq.  564. 

■J  Gardner  v.  Gooch,  48  Maine,  487. 

(a)  In  New  York,  where  a  complaint  trespass  and  ejectment,  cannot  be  given, 

shows  no  facts  constituting  a  cause  of  ac-  where  the  complaint  omits  to  describe  any 

tion,  tlie  defendant  may  either  demur  or  premises  ;  the  proper  course  in  such  case 

avail  himself  of  the  defect  at  the  trial ;  is  to  dismiss  the  complaint,  w^ith  leave  to 

and  a  bill  of  particulars  under  §  158  of  amend  on  terms.     Budd  v.  Bingham,  18 

the  Code,  or  under  §  160,  in  an  action  of  Barb.  494. 


CH.  V,]  PLEADING  IN  TRESPASS.  303 

§  8.  A  count  in  trespass  for  cutting  down  and  carrying  away  a 
tree  from  the  plaintiff's  land,  which  commences  like  a  count  in 
trespass  quare  clausum,  but  concludes  with  an  allegation  that  the 
trespass  is  "  contrary  to  the  statute  in  such  case  made  and  pro- 
vided, whereby  the  plaintiff  is  entitled  to  recover  of  the  defendant 
treble  the  aforesaid  value  of  said  tree,  &c.,"  is  a  count  for  the 
statute  penalty  (Yerm.  Comp.  Stat.  §  32,  p.  550),  and  not  a  count 
in  trespass  at  common  law.  The  county  court  cannot  allow  an 
additional  count  in  trover,  either  at  common  law,  or  by  virtue  of 
the  statute  (Acts  of  185fi,  p.  13),  which  allows  the  joinder  of 
counts  in  trespass  and  trover,  if  for  the  same  cause  of  action. 
And  it  is  doubted  whether,  if  the  original  count  were  simply  for 
trespass  quare  clausum,  the  new  count  in  trover  could  be  added. 
In  this  case  the  following  important  distinction  is  taken  with 
reference  to  the  pleading  of  a  statute  :  "  the  commencement  of 
the  count  is  in  the  appropriate  form  of  a  declaration  in  trespass 
upon  the  freehold,  yet  this  is  well  enough,  especially  upon  the 
general  issue,  although  the  pleader  intends  to  go  upon  the  statute 
and  claim  treble  damages.  To  give  a  right  of  action  founded 
upon  the  statute,  the  trees  .  .  .  must  be  standing,  lying,  or  grow- 
ing on  the  land  ol  the  plaintiff,  and  the  entry  .  .  .  for  such  unlaw- 
ful purpose  necessarily  constitutes  a  breaking  of  the  plaintiff's 
close.  .  .  .  The  statute  in  this  declaration  is  counted  upon  by  the 
pleader  in  the  usual  way,  by  an  express  reference  to  it,  not  only 
by  declaring  the  transaction  to  be  against  the  form  of  the  statute, 
but"  (as  above  stated)  "showing  clearly  that  the  pleader  goes 
for  the  penalt}'.  If  the  facts  are  stated  which  bring  a  case  within 
a  statute,  this  is  what  is  called  pleading  a  statute,  although  no 
mention  or  notice  is  taken  of  the  statute ;  but  counting  upon  a 
statute  ...  is  by  way  of  an  express  reference  to  it."  ^ 

§  9.  With  reference  to  time,  trespass  for  taking  four  loads  of 
wheat,  with  a  continuando  of  the  trespass  for  a  month,  is  good.^ 
So  trespass  for  breaking  the  plaintiff's  close,  treading  down  his 
grass,  and  hunting  and  killing  his  rabbits,  on  divers  days  and 
times  from  such  a  time  to  such  a  time,  with  a  continuando  of  the 
said  trespass  as  to  all  the  particulars,  is  good ;  for,  although  one 
act  cannot  be  continued  from  one  day  to  another,  yet  an  act  may 
be  daily  continued.^ 

'  Keves  i-.  Prescott,  32   Vt.   86;    per  2  Wilson  v.  Howard,  5  Mod.  178. 

Bennett',  J.,  ib.  87.  3  Monkton  i-.  Ashley,  G  Mod.  38. 


804  PLEADING.  [book    III. 

§  10.  The  allegation  of  trespasses  on  a  certain  day,  and  on 
divers  other  days  between  that  and  another  day,  makes  time  a 
descriptive  part  of"  the  trespass,  and  opens  the  door  for  proof  as 
to  any  trespass  committed  within  that  time,  and  closes  it  as  to  all 
others. 1 

§  11.  In  an  action  for  trespass  qiiare  clausum,  and  with  teams, 
carriages,  and  men,  treading  down  and  destroying  the  plaintiff's 
grass  upon  a  certain  day  ;  evidence  may  be  properly  admitted  of 
several  separate  and  distinct  acts  or  entries,  each  of  which  might 
alone  technically  constitute  a  breaking,  when  made  upon  the 
same  close  upon  the  same  day,  and  in  pursuance  of  the  same  gen- 
eral purpose.  The  court  very  justly  remark :  "  The  defendant 
cannot  complain  that,  instead  of  two  suits,  or  ten  suits,  if  there 
had  been  as  many  loads  of  hay  drawn,  he  has  been  charged  with 
the  whole  in  one  suit.  .  .  .  No  one  probably  ever  knew  a  trespass 
charged  with  a  continuando,  from  one  hour  or  period  in  a  day  to 
some  other  hour  or  period  of  the  same  day ;  nor  does  the  law 
favor  the  bringing  of  a  multiplicity  of  suits,  especially  small  ones 
of  trifling  amount,  where  one  would  as  well  settle  all  the  questions 
of  right,  and  the  plaintiff  could  as  well  recover  all  his  actual  dam- 
age in  one  suit  as  in  two  or  ten.  And  certainly  the  defendant 
cannot  complain  of  this,  though,  perhaps,  he  might  have  done  so 
with  some  reason,  had  the  opposite  course  .  .  .  been  pursued."^ 

§  12.  In  a  second  action  for  a  continued  trespass,  the  former 
verdict  and  judgment  are  evidence,  but  not  conclusive,  of  title.^ 

§  13.  Under  the  Massachusetts  Practice  Act,  time  need  not  be 
stated  in  trespass  quare  clausum.'^ 

§  14.  Trespass  for  taking  and  carrying  away '' mahogany  tables 
and  chairs,"  without  specifying  the  number,  was  held  well  enough, 
after  verdict ;  the  court  remarking:  "The  jury  must  have  had 
evidence  of  the  number  of  the  several  articles  taken  ;  at  least 
tiiey  would  have  found  damages  only  for  so  many  as  were  proved."  ^ 
So,  in  New  York,  where  a  declaration  in  trespass  de  hon.  asport. 
omits  to  allege  that  the  goods  taken  were  the  property  of  the 
plaintiff,  and  the  defendant  does  not  appear,  and  the  plaintiff 
proves  the  trespass  and  his  title ;  the  declaration  will  uphold  a 
judgment,  although  bad  on  demurrer.^ 

1  Tayne  v.  Green,  10  S.  &  M.  507.  ■*  Knapp  v.  Slocomb,  9  Gray,  74. 

2  Clieswell  V.  Chapman,  42  N.  H.  47 ;  ^  Kichardson  v.  Eastman,  12  Mass. 
per  Sargent,  J.,  ib.  51.  505. 

3  Nivin  V.  Stevens,  5  Har.  272.  s  Copley  v.  Rose,  2  Comst.  115. 


CH.  v.]  PLEADING  IN  TRESPASS.  305 

§  15.  But,  in  general,  a  declaration  in  trespass  de  hon.  asport. 
is  ill,  even  after  verdict,  and  on  motion  in  arrest  of  judgment,  if 
it  does  not  aver  the  plaintiff's  title.  The  court  make  a  distinction 
between  this  case  and  a  title  defectively  stated,  which  may  be  cured 
by  a  verdict.  But  the  plaintiff  was  allowed  to  amend,  upon  paying 
the  costs  accrued  since  the  case  went  to  the  jury.^ 

§  16.  With  reference  to  the  p/e^/s  in  trespass,  whether  the  gen- 
eral issue,  or  a  special  justification,  the  general  rule  is  laid  down 
as  follows  .  («)  "In  trespass  quarx  clausum /regit,  the  defendant 
may  give  in  evidence  under  the  general  issue  any  matter  that 
contradicts  the  allegations  which  the  plaintiff  is  bound  to  prove, 
or  shows  that  the  act  complained  of  is  not  in  its  own  nature  a 
trespass.  Thus  he  may  give  in  evidence  soil  and  freehold  in  him- 
self, or  in  another  by  whose  authority  he  entered,  or  that  he  has 
any  other  right  to  the  possession.  For  he  cannot  be  a  trespasser 
in  exercising  a  right  which  the  law  gives  him,  nor  be  bound  to 
justif}''  wiien  he  does  wot  pr^imd  facie  appear  to  be  a  trespasser."  ^ 
The  defendant  may,  under  the  general  issue,  give  in  evidence 
any  matter  which  directly  controverts  the  truth  of  any  allegation 
which  the  plaintiff,  on  such  general  issue,  will  be  bound  to  prove; 
and  no  person  is  bound  to  justif)'  who  is  not  prijnd  facie  a  tres- 
passer :  but,  when  the  act  would  at  common  law  primd  facie 
appear  to  be  a  trespass,  any  justification  or  excuse,  or  act  done 
by  virtue  of  a  warrant  or  authority,  must  in  general  be  specially 
pleaded.^  Accordingly  he  may  give  in  evidence,  under  the  gen- 
eral issue,  that  he  is  tenant  in  common  with  the  plaintiff,  or  that 
he  entered  by  license  of  such  tenant."*  In  general,  a  license  must 
be  pleaded.^  But  the  distinction  is  made,  that  the  defence  of 
license  requires  a  special  plea,  only  when  such  license  was  given 
by  the  plaintiff  himself,  and  not  by  one  claiming  title  as  against 
the  plaintiff.*^  (6)     So,  in  trespass  de  hon.  asport.,  a  defence,  con- 

1  Carlisle  v.  Weston,  1  Met.  26.  *  Hawson  v.  Morse,  4  Pick.  127. 

2  Per  Morton,  J.,  4  Pick.  127.  5  Haijrht  v.  Badfreley.  15  Harb.  499. 
*  Bruch  V.  Carter,  3  Vrooni,  554.  ^  Child  v.  Alien,  o3  Verm.  476. 

(a)  The  pica  of  not  guilty  is  a  waiver  of  (6)  An  answer,  in  an  action  for  cutting 
all  dilatory  defences.  Hill  v.  Morey,  26  and  carrying  away  timber,  that  the  de- 
Verm.  178.  fcndant  purchased  the  timber  from  the 
Every  pica  in  bar  must  be  pleaded  to  i)iaintifl"s  vendor,  under  a  parol  license  to 
the  action,  not  to  the  damages  merely,  cut  and  take  it  away,  and  that  the  plain- 
In  trespass  de  hon.  nsporl.,  facts  in  mitiga-  titl'  had  knowledge  of  the  liccn.«e  and 
tion  cannot  be  specially  pleadeil,  but  acquiesced  therein,  is  good,  on  ilcmurrer, 
must  be  given  in  evidence  umlcr  the  as  a  plea  of  license.  Sclch  v.  Jones,  28 
general  issue.  Hopple  v-  lligbee,  3  Zabr.  Ind.  255. 
342. 

20 


306  PLEADING.  [book   III. 

stituting  a  direct  denial  of,  and  inconsistent  with,  the  allegations 
in  the  declaration,  which  are  essential  to  be  proved  in  order  to 
maintain  the  action,  may  and  ought  to  be  given  in  evidence  under 
the  general  issue.  But  if  consistent  with  such  a  state  of  facts  as 
would  constitute  a  primd  facie  case  of  trespass,  and  amounting 
only  to  an  excuse  or  justiJBcation,  the  facts  cannot  be  given  in 
evidence  under  the  general  issue,  but  must  be  specially  pleaded, 
or  a  brief  statement  filed  under  the  statute.^  And  it  is  held  in 
an  old  case,  that,  in  trespass,  the  right  cannot  be  given  in  evi- 
dence by  the  defendant,  on  the  plea  of  not  guilty,  not  even  in 
mitigation  of  damages.^  In  other  words,  matters  of  defence  which 
admit  the  original  wrong  must  in  general  be  specially  pleaded.^ 
Thus  the  defendant  cannot  justify,  under  the  general  issue,  the 
cutting  the  posts  and  rails  of  the  plaintiff,  though  erected  upon 
the  defendant's  own  land ;  there  being  no  question  raised  as  to 
the  property  remaining  in  the  plaintiff.*  So  a  military  order 
as  a  defence  must  be  pleaded  specially.^  So  evidence  of  a 
former  recovery  is  not  admissible  under  the  general  issue.*^  So, 
as  we  have  seen,  a  license  to  enter  the  house  of  another  should 
be  pleaded.'^  So  it  cannot  be  shown  under  the  general  issue 
that  a  trespass  was  committed  on  a  public  or  private  way.^  So 
matters  in  discharge  of  the  action  must  be  specially  pleaded,  even 
though  given  in  evidence  by  the  plaintiff.^ 

§  17.  The  common-law  rules  on  this  subject  have  been  variously 
modified  in  the  different  States.  But  in  Texas,  where,  to  a  peti- 
tion for  entering  on  the  plaintiff's  close  and  tearing  down  and 
carrying  away  his  fence,  the  defendant  pleaded  the  general  issue; 
held,  under  the  common  system  of  pleading,  the  plea  of  not  guilty 
to  an  action  of  trespass  quare  clausum  or  de  bonis  asportatis  did 
not  put  the  plaintiff's  title  in  issue,  but  the  fact  of  the  trespass; 
and  that  a  fortiori,  under  the  Texan  form  of  pleading,  a  general 
denial  of  the  petition  did  not  put  the  petitioner's  title  in  issue, 
but  that  the  facts  should  be  specially  stated  in  the  answer.^*^  So, 
in  Illinois,  a  plea  of  not  guilty,  in  trespass  de  bonis  asportatis,  puts 

1  Fuller  V.  Bounceville,  9  Fost.  554.  «  Young  v.  Rumraell,  2  Hill,  478 ;  Hahn 

2  Dove  V.  Smith,  6  Mod.  153.  v.  Ritter,  12  111.  80. 

3  2  Hill,  478.  7  Haight  v.  Badgeley,  15  Barb.  499. 

4  Welch  V.  Nash,  8  East,  394.  8  Aiken  v.  Stewart,  63  Penn.  30. 

5  Merritt  v.  Nashville,  5  Cold.  95.  9  Walker  v.  Hitchcock,  19  Verm.  634. 

1"  Carter  v.  Wallace,  2  Tex.  206. 


CH.    v.]  PLEADING    IN   TRESPASS.  307 

in  issue  only  tlie  wrongful  taking;  and  the  verdict,  "  not  guilty," 
determines  nothing  as  to  the  right  of  property.^ 

§  17  a.  And,  in  trespass,  whatever  admissions  as  to  his  own  or 
the  plaintiff's  title,  the  defendant  may  make  in  his  special  pleas, 
have  no  effect  as  estoppels  in  pais,  and  do  not  estop  him  from  put- 
ting the  plaintiff  to  full  proof  of  his  title  under  the  general  issue. 
"  It  is  always  competent  for  a  defendant,  in  trespass,  to  put  the 
plaintiff  on  proof  of  his  title  under  the  general  issue,  however 
many  special  defences  he  may  set  forth  on  the  record ;  and  the 
special  pleas  have  no  effect  by  way  of  estoppel  .  ,  .  unless  the 
issues  upon  such  special  pleas  shall  become  subjects  of  litigation  ; 
and  then  tliey  estop  only  as  admissions  that  operate  to  preclude 
proof  in  contradiction  of  the  averment,  or  to  dispense  with  proof 
of  what  is  admitted  by  the  pleadings."  ^ 

§  17  6.  On  the  other  hand,  in  Vermont,  if  the  defendant,  in  an 
action  of  trespass,  give  a  special  notice  of  his  matter  of  justifica- 
tion under  the  general  issue,  in  pursuance  of  the  statute,  the  plain- 
tiff, on  trial,  may  avail  himself  of  every  matter,  which  he  might 
have  successfully  new-assigned,  if  the  defendant  had  pleaded  his 
defence  specially.^ 

§  18.  In  trespass  to  try  title,  in  Texas,  a  general  denial  puts  in 
issue  the  plaintiff's  right  to  recover.*  The  defendant  under  a 
plea  of  not  guilty  may  give  in  evidence  any  special  matter  of 
defence  to  the  action,  whether  legal  or  equitable.^ 

§  19.  In  Massachusetts,  an  answer  to  an  action  of  tort  in  the 
nature  of  trespass  qu.  claus.,  which  denies  that  the  defendant  en- 
tered the  plaintiff's  close,  as  described  in  the  plaintiff's  writ,  puts 
the  plaintiff's  title  in  issue.^ 

§  20.  A  license  must  be  specially  set  up  in  the  answer, ^ 

§  21.  In  South  Carolina,  in  trespass  for  taking  goods,  the  de- 
fendant may  under  the  general  issue  prove  that  the  goods  were 
taken  as  a  distress  for  rent.^ 

§  22.  In  an  action  of  tort  in  the  nature  of  trespass  to  real 
estate,  the  defendant,  under  an  answer  denying  that  the  plaintiff 
is  seised  of  the  premises,  may  put  in  evidence  a  deed  thereof  to 
himself  from    a  former   owner,  under   whom    the    plaintiff  also 

1  Harris  v.  Miner,  28  111.  135.  5  Mann's  Ex'r  v.  Falcon,  25  Tex.  271. 

2  Child  V.  Allen,  33  Verm.  476.     Per         •>  Bennett  i'.  Clemence,  0  Allen,  10. 
Barrett,  J.,  ib.  483.  ^  Iloilenbeck  v.  Rowley.  8  Allen,  473. 

2  Keyes  v.  Howe,  18  Verm.  411.  8  Reed  v.  Stouey,  2  liich.  401. 

*  Harlan  v.  Haynie,  9  Tex.  459. 


308  PLEADING.  [book   III. 

claims,  which   is  prior  in  date  to  the  title  relied  on  by  the  plain- 
till",  i 

§  23.  Under  an  answer  in  trespass  qu.  claus.,  justifying  under 
A,  as   owner,  the  defendant  may  show  an  estate  in  common  in 

§  24.  In  trespass  for  taking  away  goods,  under  a  plea  of  prop- 
erty in  a  third  person,  evidence  of  such  ownership  at  the  time  of 
the  taking  is  admissible.^ 

§  25.  Where  one  alleges  a  particular  title  in  excuse  or  justifica- 
tion for  an  act  which  would  otherwise  be  a  trespass,  he  is  bound 
to  prove  the  title  precisely  as  he  has  alleged  it.*  Thus  where,  in 
an  action  for  trespass  on  lands,  the  defendants  in  their  answer 
set  up  a  title  to  the  premises  in  a  third  person,  and  justify  their 
entry  under  a  license  from  him;  they  cannot  change  their  ground 
upon  the  trial,  and  show  title  in  one  of  the  defendants.  Or  that 
the  plaintiff's  grantor  was  estopped  from  denying  the  defendant's 
title.5 

§  26.  Where  the  defendant  pleads  only  soil  and  freehold  in 
himself,  and  issue  is  joined  thereon,  he  has  the  right  of  opening 
and  closing.  He  thereby  admits  the  act  complained  of,  and  un- 
dertakes to  prove  the  property  of  the  soil  in  himself.  He  has  the 
affirmative,  and,  if  he  fails  to  make  it  out,  the  verdict  must  be 
against  him.*" 

§  26  a.  In  an  action  for  breaking  and  entering  a  close  and  tak- 
ing and  carrying  away  stone,  a  plea  which  defends  only  the  latter 
is  insufficient.  The  defendant  should  plead  that  he  entered  for 
the  purpose  of  exercising  his  other  right,  and  that,  in  so  doing, 
he  did  no  unnecessary  damage.''' 

§  26  h.  In  trespass  qu.  c^.,  if  a  portion  of  the  declaration  set 
forth  injuries  which  admit  of  being  construed  as  matter  of 
aggravation  merely,  the  defendant  may  adopt  this  construction, 
and  make  such  a  plea  as  will  be  a  good  defence  to  the  gist  of  the 
action  only  ;  and,  if  the  plaintiff  would  make  such  injuries  part  of 
the  gist  of  his  action,  he  must  newly  assign.^ 

§  26  c.  To  a  count  in  trespass  for  cutting  down  and  carrying 
aAvay  timber,  the  defendant  pleaded,  for  defence  on  equitable 
grounds,  that  the  former  owner,  whose  devisee  the  plaintiff  was, 

1  Walker  v.  Swasey,  2  Allen,  812.  ^  Ooan  v.  Osgood,  15  Barb.  583. 

'i  Jevvett  V.  Foster,  1-1  Gray,  495.  «  Davis  v.  Mason,  4  Pick.  156. 

3  Anthony  v.  Gilbert,  4  Blaokf.  348.  ''  Goodrich  v.  Judevine,  40  Vt.  190. 

4  Great,  &c.  v.  Worster,  15  N.  H.  412.  8  Grout  v.  Knapp,  40  Vt.  163. 


CH.    v.]  PLEADING    IN   TRESPASS.  309 

had  b}''  agreement  bargained  and  sold  certain  timber  growing  on 
the  hind  to  the  defendant,  upon  the  terms  that  in  a  certain  event 
tlie  defendant  might  from  time  to  time  enter,  cut  down,  and 
carry  it  away  at  an  agreed  price;  that,  after  the  happening  of  the 
event  and  in  the  testator's  lifetime,  tiie  defendant  entered,  cut 
down,  and  carried  away,  and  paid  for  part  of  the  timber  sold,  and 
that  his  entering,  cutting  down,  and  carrying  away  other  part 
thereof,  in  pursuance  of  the  agreement,  after  the  testator's  death, 
and  within  a  reasonable  time,  constituted  the  alleged  trespass. 
Held,  the  plea  was  bad,  upon  the  ground  that  equity  would  not 
grant  an  unconditional  injunction  to  restrain  the  action,  and  that 
a  common-law  judgment  for  the  defendant  would  not  do  final  jus- 
tice between  the  parties.^ 

§  27.  It  is  very  generally  provided  by  express  statute,  that  the 
question  of  title  to  real  estate  shall  not  be  tried  hy  Justices  of  the 
peace,  (a) 

§  28.  In  Massachusetts,  in  an  action  of  trespass  brought  before 
a  justice  of  the  peace,  the  filing  of  a  plea  of  title  to  re^l  estate 
takes  away  his  jurisdiction,  and  it  cannot  be  restored  by  plead- 
ing over,  and  joining  an  issue  not  involving  the  question  of 
titie.2 

§  29.  In  an  action  of  trespass,  brought  before  a  justice  of  the 
peace,  for  taking  and  carrying  away  the  plaintiff's  cow,  the  de- 
fendant pleaded  that  he  was  the  owner  of  a  close,  and  that  the 
cow  broke  into  the  close,  and  that  he  thereupon  impounded  her. 
The  plaintiff  replied,  that  the  defendant  injured  the  cow.  Issue 
was  taken  on  the  injury,  and,  after  a  trial  upon  that  issue,  the 
action  was  carried  by  appeal  to  the  Court  of  Common  Pleas, 
and  there  an  amendment  was  allowed,  putting  in  issue  the  title 
to  the  close.  Held,  the  allowance  of  the  amendment  was  errone- 
ous.-'^ 

§  30.  Where,  in  trespass  qu.  claus.  before  a  justice  of  the 
peace,  the  defendant  pleads  in  bar  that  he  entered  into  his  adjoin- 
ing close,  and  there  erected  a  fence,  <fec. ;  the  justice  has  juris- 
diction.^ 

1  Wakley  v.  Froggatt,  2  Hurl.  &  Colt.  »  Ih. 

669.  ■♦  Wood  V.  Prescott,  2  Mass.  174. 

•-i  Kelley  v.  Taylor,  17  Pick.  218. 

(a)  In  Wisconsin,  under  the  old  prac-     tlie  facts,  to  sliow  jurisdiction.     Roys  v. 
tice.  a  justification  of  a  trespass  under  a     Lull,  D  Wis.  o24. 
justice's  execution  must  set  out  in  detail 


310  PLEADING.  [book   III. 

§  31.  The  Mass.  St.  1783,  c.  42,  providing  that  an  action  of 
trespass  brought  before  a  justice  of  the  peace  may  be  removed 
into  the  Court  of  Common  Pleas  by  a  plea  of  title  to  real  estate, 
comprehends  all  actions  of  trespass.^ 

§  32.  If  the  justice  refuses  to  receive  such  plea,  the  defendant 
ought  to  appeal;  but  where,  instead  of  appealing,  he  pleaded  the 
general  issue,  and,  after  a  trial  and  judgment  against  him,  appealed 
from  this  judgment,  and  the  Court  of  Common  Pleas,  upon  motion, 
gave  him  leave  to  file  his  plea  of  title:  held,  the  proceeding  of 
that  court  was  correct.^ 

§  33.  In  an  action  of  trespass  brought  before  a  justice  of  the 
peace,  and  removed  into  the  Court  of  Common  Pleas,  by  a  plea  of 
title  to  land  ;  an  appeal  lies  from  the  Court  of  Common  Pleas  to 
the  Supreme  Court,  such  action  being  a  real  action  for  the  pur- 
poses of  appeal." 

§  34.  In  New  Jersey,  in  an  action  of  trespass  qu.  claus.,  brought 
to  the  Supreme  Court  after  plea  of  title  before  a  justice,  the  de- 
fendant cannot  plead  "not  guilty,"  or  "leave  and  license,"  but 
those  pleas  will  be  struck  out  on  motion,  and  he  will  be  confined 
to  his  plea  of  title.* 

§  85.  In  Texas,  the  court  may  refuse  an  order  for  a  survey, 
when  defendants  answer  that  they  are  the  true  and  lawful  own- 
ers of  land  described  in  the  petition.^ 

§  36.  In  trespass  for  taking  the  plaintiff's  goods  in  Dale,  the 
defendant  cannot  plead  in  justification,  generally,  that  the  place 
where,  &c.,  is  his  freehold,  and  that  the  goods  were  then  damage 
feasant.^ 

§  37.  Questions  as  to  joinder  have  often  arisen  in  the  action  of 
trespass. 

§  38.  The  causes  of  action  in  the  old  forms  of  trespass  qu. 
claus.  and  de  hon.  asport.  may  be  joined  in  one  petition,  under 
the  pleadings  in  Texas,  as  they  are  not  inconsistent  rights  of 
action.'' 

§  39.  An  action  for  wilfully  destroying  a  horse  may  be  joined 
with  a  count  for  trespass  in  entering  on  the  plaintiff's  tenement.^ 
But  where,  in  trespass  for  breaking  the  plaintiff's  close,  and  carry- 
ing away  his  chattels,  the  declaration  does  not  contain  a  count  for 

1  Blood  V.  Kemp,  4  Pick.  169.  5  Castro  v.  Marzbach,  13  Tex.  128. 

'  lb.  K  Elwis  V.  Lonilie,  6  Mori.  117. 

»  lb.  7  Carter  i-.  Wallace,  2  Tex.  206. 

4  Campfield  v.  Johnson,  1  N.  J.  83.  8  Ripley  v.  Miller,  1  Jones,  480. 


CH.    v.]  PLEADING    IN    TRESPASS.  311 

only  taking  the  chattels,  he  cannot  recover  for  taking  them,  unless 
he  proves  a  breacli  of  the  close. ^ 

§  40.  In  an  action  of  trespass,  the  declaration  contained  two 
counts,  one  for  ijreaking  and  entering  a  close  with  force  and  arms, 
and  cutting  down  and  carrying  away  sixteen  stooks  of  rye,  and 
the  other  for  taking  and  carrying  away  sixteen  stooks  of  other 
rye.  The  defendant  pleaded,  "  as  to  the  force  and  arms  or  any 
thing  against  tlie  peace,  and  also  the  whole  trespass  and  all  the 
trespasses  in  the  declaration  mentioned,  excepting  the  breaking 
and  entering  the  close  aforesaid,  and  cutting  down  and  carrying 
away  sixteen  stooks  of  rye  then  and  there  growing,  she  says  she 
is  not  guilty  thereof;  "  and  justified  the  breaking  the  close  and 
carrying  away  the  rye,  upon  the  ground  of  soil  and  freehold. 
Held,  the  plaintiff  was  not  entitled  to  judgment  on  the  second 
count  as  upon  a  nihil  (licit,  the  plea  being  a  sulHcient  answer  to 
the  whole  declaration.^ 

§  41.  Where  there  are  several  counts,  and  a  general  plea  of  not 
guilty,  with  leave  to  give  special  matter  in  evidence  ;  the  plea  will 
be  as  broad  as  the  declaration,  and  justify  the  counts  collectively 
and  separately,  and  each  trespass,  where  the  counts  are  so  framed 
as  to  include  more  than  one."^ 

§  42.  If  a  declaration  in  trespass  contain  two  counts  for  the 
same  trespass,  and  the  defendant  plead  the  general  issue  to  both, 
and  a  special  plea  in  bar  to  one,  on  which  a  verdict  is  found  for 
him  ;  he  is  entitled  to  a  verdict  on  the  general  issue  likewise.  The 
court  remark :  "  I  am  not  aware  of  any  rule  of  pleading  by  which 
the  defendant  can  be  considered  as  having  admitted  there  were  two 
supposed  trespasses.  He  admits  one  and  justifies  it,  and  he  denies 
the  fact  as  to  tlie  other,  if  two  were  intended  to  be  charged.  It  is 
not  formally  averred,  that  there  were  two  different  trespasses ; 
both  counts  charge  the  same  trespass,  the  second  count  adding 
only  some  further  matter  of  aggravation.  .  .  .  The  inference  is 
fair,  that  the  same  trespass  was  intended.  .  .  .  We  do  not,  how- 
ever, decide  the  point  on  this  distinction,  for  we  should  come  to 
the  same  result  if  it  had  been  averred  that  the  trespasses  were 
committed  at  different  times,  the  time  in  this  action  not  being 
material.  And  it  would  make  no  difference  if  the  law  would  per- 
mit the   plaintiff  to  sustain  two  actions  of  trespass   on  the  evi- 

1  Ropps  V.  Barker,  4  Pick.  239.  3  Payne  v.  Green,  10  S.  &.  M.  507. 

2  Parker  v.  Parker,  17  Pick.  236. 


312  PLEADING.  [book   III. 

dence  introduced.  For  suppose  he  could  maintain  an  action 
chargin<2;  the  defendant  with  taking  and  carrying  away  the  plain- 
tiff's goods  in  one  count,  and  taking  down  the  building  in 
another,  still,  as  the  defendant  has  justified  both  charges,  the 
plaintiff  cannot  recover  witliout  proof  of  another  trespass  not 
justified."^ 

§  43.  Trespass.  First  count,  for  seizing  and  carrying  away  cer- 
tain goods,  chattels,  and  effects  of  the  plaintiff,  to  wit,  &c.  Fifth 
count,  for  tearing  away,  severing,  and  removing  divers  fixtures  of 
the  plaintiff.  Pleas.  First,  not  guilty;  secondly,  a  justification  to 
the  first  count,  taking  the  goods  and  chattels  as  a  distress  for  rent 
due  on  a  tenancy.  Replication,  denying  the  tenancy ;  and  issue 
thereon.  The  judge  directed  the  jury,  that  the  justification  cov- 
ered the  whole  declaration  ;  but  the  jury  found  for  the  plaintiff, 
with  one  farthing  damages.  Held,  the  justification  was  primd 
facie  an  answer  to  the  seizing  and  carrying  away,  in  the  first 
count ;  and  the  plaintiff,  if  he  intended  to  rely  on  some  of  the 
articles  being  fixtures,  ought  to  have  replied  that  fact;  but  the 
justification  was  no  answer  to  the  trespasses  stated  in  the  fifth 
count.  Also,  as  the  jury  had  not  acted  according  to  the  misdi- 
rection, but  had  given  damages,  the  court  would  not  grant  a  new 
trial  on  the  ground  of  the  misdirection.^ 

§  44.  To  an  action  for  breaking  and  entering,  pulling  down  and 
destroying,  the  plaintiff's  house  whilst  he  and  his  family  were 
therein,  and  assaulting  the  plaintiff,  and  by  so  pulling  it  down 
endangering  the  lives  and  injuring  the  persons  of  the  plaintiff 
and  his  family,  and  ejecting  them  therefrom,  and  taking  the  mate- 
rials of  the  house ;  the  defendant,  as  to  the  breaking  and  entering 
and  pulling  down  and  destroying  the  house,  and  taking  the  ma- 
terials, justified  in  the  exercise  of  a  right  of  common  pasture 
over  the  land,  on  which  the  house  was  wrongfully  erected,  so  that 
without  pulling  it  down  he  could  not  enjoy  the  right.  Held,  no 
answer.  ^ 

§  44  a.  To  a  declaration  for  breaking  open  a  gate  and  lock,  the 
defendant  pleaded,  as  an  equitable  defence,  that,  disputes  having 
arisen  between  the  plaintiff,  defendant,  and  other  persons,  about  a 
right  of  way,  an  agreement  in  writing  was  entered  into  between 

•  Curl  V.  Lowell,  19  Pick.  25 ;  per  2  Twigg  v.  Potts,  1  Cromp.  Mees.  & 
"Wilde,  J.,  ib.  28.  Ros.  89. 

^  Jones  V.  Jones,  31  L.  J.,  Exch.  506. 


CH. 


v.]  PLEADING   IN   TRESPASS.  313 


the  parties,  that,  without  prejudice  on  either  side  to  the  question 
of  right,  a  way  over  the  locus  in  quo  should  remain  open  for  the 
passage  of  the  defendant  and  the  other  persons,  until  the  plain- 
tiff's  solicitor  and  the  defendant  should  come  to  a  definite  under- 
standing as  to  the  course  to  be  pursued  in  deciding  the  question 
in  dispute  ;  and  tliat  the  trespasses  were  committed  in  the  use  by 
the  defendant  of  the  way,  because  the  gate  had  been  wrongfully, 
and  contrary  to  the  agreement,  placed  across  it.  Held,  first,  that 
the  plea  did  not  amount  to  a  plea  of  leave  and  license  at  common 
law,  as  the  locking  of  the  gate  was  a  revocation  of  the  license. 
Second,  that  it  was  not  good  as  an  equitable  plea,  the  circum- 
stances in  equity  not  entitling  the  defendant  to  have  the  plaintiff 
restrained  by  an  unconditional  injunction  from  prosecuting  the 
action. 1 

§  45.  The  pleas  in  trespass  are  answered  by  various  replications. 
Where  a  defence  sets  up  matter  of  positive  and  absolute  right,  as 
the  levy  of  an  execution,  &c.,  a  special  replication  is  required ; 
but  where  the  defence  amounts  to  an  excuse  for  the  act  com- 
plained of,  &c.,  the  general  replication,  de  injuria,  <fcc.,  is  suffi- 
cient.2 

§  46.  So  where  the  defendant,  in  an  action  of  trespass  quare 
clausumf regit,  pleads  or  insists  upon  a  right,  title,  or  interest  in 
the  close  in  question,  the  general  replication  de  injurid  is  bad. 
Otherwise,  if  the  title  alleged  is  to  something  else,  and  is  only 
stated  as  inducement  to  an  excuse  for  entering.  Thus  where,  to 
an  action  of  trespass  for  entering  the  plaintiff's  close  and  tearing 
down  a  dam  there  erected,  the  defendant  pleads,  that  the  dam 
caused  an  injury  to  the  land  of  third  persons,  and  that  he  entered 
as  their  servant,  for  the  purpose  of  abating  it ;  the  plea  insists 
upon  no  right,  title,  or  interest,  but  sets  up  the  title  in  tlie  other 
lands  as  matter  of  excuse  for  the  entry,  or  of  inducement,  to 
excuse  or  justify  the  entry  ;  and  the  replication  de  injurid  is 
sufficient.^  So  in  trespass  against  an  overseer  of  roads,  for  enter- 
ing land,  and  cutting  and  carrying  away  timber ;  the  defendant 
pleaded  that  he  took  the  timber  to  repair  bridges,  "  it  being  the 
nearest  unimproved  land  to  said  bridges,"  <fec.  The  plaintiff  re- 
plied that  it  was  not  the  nearest  unimproved  land,  <fec.    Held,  the 

1  Hyde  v.  Graham,  8  Jur.  (N.  S.)  1229 ;         2  Allen  v.  Scott,  13  111.  80. 
11  W.  K.  119  Exch.  3  Great,  &c.  v.  Worster,  15  N.  H.  412. 


314  PLEADING.  [book   III. 

plea  asserted  two  facts,  and  the  replication  traversed  both,  and 
was  sufficient.^ 

§  47.  Where  one  abuses  an  authority  or  license  which  the  law 
gives  him,  by  which  he  becomes  a  trespasser  ah  initio,  if  the  de- 
fendant plead  the  license  or  authority,  the  plaintiff  should  reply 
the  matter  showing  the  abuse.  If  be  reply  de  inj'arid,  generally, 
no  question  of  excess  is  put  in  issue.^ 

§  48.  The  remark,  however,  is  justly  made,  that  "  it  would 
be  a  useless  labor  to  attempt  to  review  all  the  cases  where  this 
replication  has  been  sustained  or  overruled.  To  reconcile  them 
all  would  be  impossible.  There  are  cases  undoubtedly  sustaining 
the  rule  .  .  .  that  this  replication  is  proper,  except  where  the 
plea  justifies  by  matter  of  record  ;  and  yet,  cases  are  not  wanting, 
where  a  special  replication  has  been  required  to  a  plea,  setting  up 
a  defence  in  no  way  depending  upon  matter  of  record.  .  .  .  Many 
of  these  distinctions  are  more  artificial  than  substantial."^ 

§  49.  In  trespass  qu.  claus.,  if  the  defendant  excuse  the  entry, 
by  alleging  that  he  entered  to  remove  a  dam  which  flowed  land 
of  which  he  was  lawfully  in  possession,  the  plaintiff  cannot,  in 
avoidance  of  the  defence,  set  up  a  title  to  the  land  flowed, 
which  was  acquired  by  him  subsequently  to  the  removal  of  the 
dam.* 

§  49  a.  In  trespass  for  taking  and  driving  the  plaintiff's  cattle, 
to  which  there  was  a  justification,  that  the  defendant  was  lawfully 
possessed  of  a  certain  close,  and  that  he  took  the  cattle  there 
damage  feasant ;  the  plaintiff  may  specially  reply  title  in  another, 
by  whose  command  he  entered,  &c. ;  and  may  also  give  color  to 
the  defendant.^ 

§  49  6.  A  replication,  in  an  action  of  trespass,  that  a  tax  was 
not  legally  assessed  by  the  prudential  committee  on  the  lists  of 
the  district  as  averred,  to  a  plea  averring  the  organization  and 
existence  of  a  school  district,  an  application  and  warning  for,  and 
holding  of  a  meeting,  the  voting  a  tax,  the  plaintiff's  liability  in 
that  district,  a  legal  assessment,  and  an  issue  to  the  defendant,  as 
collector,  of  his  warrant,  &c.  ;  presents  a  single  issue,  and  is  good 
on  special  demurrer.^ 

§  50.  A  form  of  replication,  very  commonly  adopted  in  actions 

1  Austin  V.  Waddell,  10  Mis.  705.  *  Great,  &c.  v.  Worster,  15  N.  H.  412. 

'^  Great,  &c.  v.  Worster,  15  N.  H.  412.  5  Taylor  v.  Eastwood,  1  E.  212. 

»  Per  Caton,  J.,  Allen  v.  Scott,  13  111.  6  Moss  v.  Hindes,  28  Verm.  279. 
84. 


CH.    Y.]  PLEADING   IN    TRESPASS.  815 

of  trespass,  is  aneio  assignment,  which  is  thus  defined  by  a  writer 
of  high  authority  on  the  subject  of  pleading:  "  Tiiou^h  a  replica- 
tion must  not  depart  from  any  material  allegation  in  the  declara- 
tion, yet  where  there  is  an  evasive  plea,  cither  as  to  the  whole  or 
a  part  of  the  cause  of  action,  the  plaintiff  may  avoid  the  effect  of 
it  by  restating  the  injury  for  which  he  meant  to  declare,  with  more 
particularity  and  certainty,  consistently,  however,  with  the  more 
general  complaint  in  the  declaration  ;  and  this  is  termed  ^nexo  or 
novel  assignment,  and  may  be  either  as  to  time,  place,  or  any  other 
circumstance,  when  material.  It  is  frequently  necessary,  in 
order  that  the  defendant  may  have  notice  of  the  real  ground 
upon  Avhich  the  plaintiff  proceeds;  and  when  from  the  nature  of 
the  action,  as  in  trespass  quare  clausum  f regit,  the  declaration  is 
so  framed  as  to  be  capable  of  covering  several  injuries,  committed 
at  different  times  or  in  different  parts  of  a  close,  &c.,  the  plaintiff 
may  frequently  reply,  not  only  denying  the  right  of  common,  or 
way,  <fec.,  stated  in  the  plea,  but  also  new-assigning  trespasses 
committed  at  different  times  or  in  different  parts  of  the  close,  to 
those  mentioned  in  the  plea."  ^ 

§  51.  In  the  action  of  trespass  qu.  claus.,  when  the  defendant 
pleads  a  right  of  way  through  the  close,  and  justifies  under  it,  the 
plaintiff  may  traverse  the  right,  and  at  the  same  time  newly  assign 
for  other  trespasses  committed  extra  viam? 

§  52.  The  plaintiff  may  neivJy  assign,  as  matter  of  right,  in  an 
action  of  trespass,  commenced  before  a  justice,  and  entered  at 
the  Court  of  Common  Pleas,  because  of  a  plea  of  title  to  real 
estate.^ 

§  53.  Action  for  breaking  and  entering  a  close,  particularly 
described  in  the  declaration,  and  cutting  certain  trees  therein. 
Plea,  not  guilty  as  to  all,  except  a  certain  portion,  described  by 
specific  boundaries,  &c.;  and,  as  to  that  portion,  soil  and  freehold. 
The  plaintiff  traversed  the  justification,  concluding  to  the  country, 
and  then  new-assigned  the  trespass.  Held,  the  pleas  covered  the 
whole  declaration  ;  that  it  was  duly  in  issue  for  trial  without  the 
new  assignment;  and  the  latter  was  therefore  bad.  Leave  to 
withdraw  the  new  assignment.^ 

§  54.  Where  the  plaintiff  names  the  close,  and  the  defendant 
pleads /i6.  ^en.,  generally,  without  further  description  of  the  close, 

1  1  Cliit.  PI.  616.  a  Janvrin  v.  Scanimon,  G  Fost.  360. 

2  Cheswell  v.  Chapman,  42  N.  H.  47.  <  Smith  v.  Powers,  13  N.  H.  216. 


316  PLEADING.  [book   III. 

the  plaintiff  need  not  new-as5?ign,  but  may  recover  upon  proving 
a  trespass  in  a  close  in  his  possession  bearing  that  name,  although 
the  defendant  may  have  a  close  in  the  same  parish  known  by  the 
same  nanie.^ 

§  55.  Where  the  defendant  pleads  a  justification  to  trespass 
qu.  claus.,  the  proof  must  be  coextensive  with  the  plea ;  and,  if 
he  fails  in  proof  of  his  justification  to  any  part  of  the  trespasses, 
the  plaintiff  is  entitled  to  a  verdict,  without  newly  assigning  the 
excess. 2 

§  56.  The  plaintiff,  having  alleged  in  two  counts,  respectively, 
two  acts  of  trespass,  to  which  the  defendant  pleaded  a  justifica- 
tion, new-assigns  a  trespass,  which  he  avers  to  be  different  from 
those  justified,  and  the  defendant  pleads  the  general  issue  to  the 
new  assignment.  Held,  the  plaintiff  was  bound  to  prove  a  difi'er- 
ent  trespass  from  those  justified  ;  and  was  estopped  by  the  aver- 
ment of  a  different  trespass  from  sustaining  the  action,  by  proving 
the  trespass  mentioned  in  one  of  the  original  counts,  on  the  ground 
that  the  plea  and  justification  was  insufficient;  for,  if  it  was  insuf- 
ficient, he  should  have  traversed  it  or  demurred.^ 

§  56  a.  Under  a  plea  of  lib.  tenement,  to  a  novel  assignment,  in 
trespass  qu.  claus.,  setting  forth  the  locus  to  be  a  certain  farm, 
the  defendant  need  not  show  title  to  the  farm  generally,  but  only 
to  that  part  on  which  the  alleged  trespass  was  committed.* 

§  56  b.  Where,  in  trespass  qu.  claus. ^  after  a  new  assignment, 
setting  forth  the  locus  as  being  a  certain  close  called  the  A  B 
farm,  the  defendant  pleaded  thereto  that  the  locus  was  the  free- 
hold of  the  defendant,  and  no  part  of  the  A  B  farm ;  held,  the 
plea  was  bad,  as  amounting  to  the  general  issue.^ 

§  57.  In  connection  with  the  subject  of  pleading  in  trespass, 
maybe  briefly  considered  the  joining  of  a  declaration  in  this  form 
with  the  analogous  remedies  of  case  and  trover. 

§  58.  Independently  of  statute,  trespass  and  case  cannot  be 
joined.*^  Thus,  in  Connecticut,  a  declaration  contained  a  count 
in  trespass,  for  the  forcible  ejection  of  the  plaintiff  by  the  defend- 
ants, a  railroad,  from  their  cars,  and  a  count  in  case  for  the  same 
injury  by  the  negligence  of  the  defendants  as  common  carriers, 
in  conveying  him  as  a  passenger,  the  latter  count  containing  an 

1  Cocker  v.  Crompton,  1  B.  &  C.  489.  »  ib. 

^  Berry  ;-.  Vreeland,  1  N.  J.  183.  6  Courtney  v.  Collet,  1  Ld.  Raym.  272; 

8  Boynton  v.  Willard,  10  Pick.  166.  Sheppar  v.  Furniss,  19  Ala.  760. 

4  Phillips  V.  P.hillips,  1  N.  J.  42. 


CH.    v.]  PLEADING    IN   TRESPASS.  317 

averment  that  it  was  for  the  same  cause  of  action  witli  the  former. 
The  hitter  count  also  contained  an  allegation  that  the  defendants, 
at  the  same  time,  assumed  for  a  certain  hire  to  also  carry  safely 
his  tool-chest,  but  so  negligently  carried  it  that  it  became  broken 
and  greatly  damaged.  Held,  on  a  motion  in  error  from  a  judg- 
ment overruling  a  general  demurrer  to  the  declaration,  that, 
although  the  latter  count  was  averred  to  be  for  the  same  cause  of 
action  with  the  former,  yet,  as  the  injury  to  the  chest  was  so  set 
forth  as  to  constitute  an  independent  and  substantial  ground  of 
recovery,  both  counts  could  not  be  for  the  same  cause  of  action, 
and  there  was  therefore  a  misjoinder  of  counts.^  (a)  And  if,  in 
an  action  on  the  case,  one  count  disclose  injuries  for  which  dam- 
ages are  recoverable  in  trespass,  the  other,  for  which  they  are 
recoverable  in  case,  and  part  of  the  proof  sustain  the  latter  count; 
the  court  cannot  treat  all  the  injuries  as  resulting  in  damages 
recoverable  in  trespass,  and  not  in  case.^  So  a  record  of  trespass 
vi  et  armis  is  not  removed  by  a  writ  of  error  on  a  judgment  in  an 
action  of  trespass  on  the  case.^ 

§  59.  In  California,  counts  in  trespass  and  in  case,  resulting 
from  the  same  tort,  may  be  joined.'* 

§  GO.  In  Kentucky,  since  the  distinction  between  actions  has 
been  abolished  by  the  Code,  a  petition,  setting  forth  a  claim  for  a 
forcible  injury,  should  state  such  facts  as  would  sustain  an  action 
of  trespass  at  common  law.  If  the  trespass  be  waived,  and  the 
petition  be  for  negligence  or  want  of  skill,  it  should  state  facts 
which  would  sustain  an  action  on  the  case  according  to  common- 
law  principles.^ 

§  Gl.  The  distinction  between  trespass  and  trespass  on  the 
case  has  been  abolished  in  Maine  by  statute.*^  A  declaration  in 
trespass  may  contain  one  count  in  case,  and  another  of  trespass 
de  bon.  asportJ    But  the  statute  applies  only  to  the  Ibrm  of  declar- 

1  Havens   v.  Hartford,  &c.,  2G    Conn.  ■•  Fralcr    v.    Scars,  &c.,  12   Cal.   555. 

220.  And  see  Holly  v.  Boston,  &c.,  8  Gniv,  130. 

'  Scott  V.  Bay,  3  Md.  431.  s  Kountz  v.  Brown,  Kl  B.  Mon.  o77. 

3  Kent's  Case,  G  Mod.  138.  «  Welch  r.  Wliitteniore,  25  Maine,  86. 

■J  Moulton  V.  Smith,  32  ib.  400. 

(«)  In  a  later  case  in  the  same  State  standinjj  alone,   arc    aii])licable    to    each 

the  court  remark:  "The  statute"  (pro-  when  joined.  .  .  .  In  actions  of  trespass, 

viding  that  counts  in  trespass  and  case  by  way  of  ajifxravation,  the  plaintiff  ma}' 

/or  thr  same  cititse  of  artioii  n\t\y  \*e  j(nncd)  recover   damajies    for    tliat    which,   alone 

"  does  not  alter  at  all  the    character  of  considcrctl,  miiiiit  furnish  a  jjood  cause  of 

either  form  of  action  when  joineil.     The  action  in  case."     i'er  i'ark,  J.,  27   Conn, 

principles  of  law,  applicable  to  each  when  616. 


S18  PLEADING.  [book   III. 

ing,  not  tlie  substance  of  the  cases.  Thus  an  allegation  of  break- 
ing and  entering  into  land  is  of  substance,  and  not  form  merely. 
A  count  not  containing  this  averment,  but  technically  in  case,  for 
injuries  to  land,  or  in  trespass  de  ban.  for  goods  taken  from  it,  is 
not  sustained  by  proof  of  an  unlawful  entry.  Nor  can  a  declara- 
tion in  trespass  qu.  claus.,  alleging  immediate  acts  of  injury  to 
land,  be  sustained  by  proof  of  an  injury,  consequentially  resulting 
from  acts  done  upon  other  land.  And  the  declaration  cannot 
be  amended  by  a  count  in  case,  alleging  consequential  dam- 
ages.^ (a) 

§  G2.  Wliether  an  action  is  trespass  or  case,  is  to  be  determined 
from  the  facts  alleged,  and  not  from  the  name  given  to  the  action.^ 
In  general,  if  the  plaintiff  declare  in  trespass,  where  the  action 
should  be  case,  he  will  be  non-suited  at  the  trial.  Otherwise,  it 
seems,  if  the  declaration  contain  enough  to  maintain  case,  though 
it  commence  by  miscalling  the  action  trespass.  And  facts, 
showing  that  the  plaintiff  has  mistaken  his  remedy  by  bringing 
trespass  instead  of  case,  cannot  be  pleaded  in  bar,  but  only  in 
abatement.^ 

§  63.  A  count,  purporting  to  be  in  case,  and  alleging  negligent 
wrongful  acts,  is  not  to  be  regarded  as  a  count  in  trespass,  simply 
because  it  alleges,  among  such  acts,  other  acts  of  force,  and  which 
in  themselves  would  have  been  proper  matter  for  a  count  in  tres- 
pass.* Although  counts  in  trespass  and  case  cannot  be  joined, 
yet,  if  the  count  in  case  is  bad  on  demurrer,  it  seems  it  may  be 
regarded  as  surplusage,  and  be  rejected,  and  the  declaration  stand.^ 
And  where  a  declaration  contained  several  counts,  some  in  trover 
and  some  in  trespass,  and  it  was  stated  in  the  commencement  of 

1  Sawyer  v.  Goodwin,  34  ib.  419.  *  Havens  v.  Hartford,  &c.,  28  Conn.  69. 

2  Coggswell  y.  Baldwin,  15  Vt.  404.  5  Bell  v.  Troy,  35  Ala.  184. 
^  The  Seneca,  &c.  v.  The  Auburn,  &c., 

5  Hill,  170. 

(a)  In  Maine,  a  writ  containing  a  count  in  be  joined  with  counts  in  case.  Parsons 
trespass  da  bonis,  and  another  in  case,  may  v.  Harper,  16  Gratt.  64. 
be  amended,  by  adding  a  more  formal  Sect.  2  (Mis.)  Rev.  Code,  1855,  p.  1228, 
count  in  trover.  Moultou  v.  Witherell,  which  provides  that  "  several  causes  of 
52  Maine,  237.  action  founded  on  injuries  with  or  with- 
Under  tlie  (Verm.)  statute,  counts  in  out  force  to  person  or  property,"  may  be 
trespass  and  trover  may  be  joined,  if  for  joined  in  tlie  same  petition,  includes  all 
the  same  cause  of  action.  Alger  v.  actions  of  trespass  or  case  under  the  old 
Curry,  38  Vt.  382.  practice.  But  a  single  count,  which  con- 
In  West  Virginia,  counts  in  trespass  on  tains  more  than  one  cause  of  action,  is 
the  case  and  trover  may  be  joined.  Hood  bad  upon  demurrer,  or  on  motion  in  arrest 
V.  Maxwell,  1  West  Va.  219.  of  judgment.    'Clark's   v.   Hannibal,    36 

Under  the  ( Va.)  Code,  c.  148,  §  7,  in  an  Mis.  202. 
action  on  the  case,  counts  in  trespass  may 


CH.  v.]  PLEADING  IN  TRESPASS.  319 

the  seventli  count,  which  was  the  first  count  in  trespass,  that  the 
preceding  and  following  counts  were  for  the  same  caune  of  action; 
held,  as  such  averment  was  introduced  for  the  ])urpo8e  of  jus- 
tifying the  joinder,  under  the  Connecticut  statute,  the  plaintiff 
was  not  confined,  on  the  trial,  to  the  proof  of  only  one  cause  of 
action.^ 

§  64.  Under  the  California  practice,  a  declaration  in  trespass 
and  a  prayer  for  injunction  may  be  made  in  the  same  complaint, 
though  not  distinctly  separated,  provided  they  be  not  inseparably 
mixed.-  But  not  trespass  quare  clavsum,  ejectment,  and  a  prayer 
for  equitable  relief.'^  And  in  New  York,  where  as  great  latitude 
is  prol)ab]y  allowed  in  pleading  as  in  any  other  State,  the  court 
remark  as  follows  upon  the  joinder  of  counts  in  trespass  and 
ejectment:  "To  entitle  him  to  recover  for  the  trespass,  he  must 
show  himself  to  have  been  in  possession  when  the  tortious  acts 
were  committed,  and  that  he  had  regained  the  possession  at  the 
time  of  the  connnencement  of  the  action  ;  and  to  entitle  him  to 
maintain  his  action  for  the  ouster,  and  to  recover  the  possession, 
he  must  show  that  the  defendant  had  the  possession  when  his 
action  was  instituted.  .  .  .  The  plaintifT  .  .  .  was  required  to 
elect  for  which  of  the  two  claims  he  would  proceed,  .  .  .  because 
the  proof  necessary  to  sustain  them  would  be  inconsistent,  and 
incongruous.""* 

§  64  a.  In  Massachusetts,  "  under  our  present  system  of  plead- 
ing, an  action  of  tort  is  sufficiently  comprehensive  to  embrace  all 
the  cases  in  which  a  remedy  was  formerly  afforded,  either  by  an 
action  of  trespass  or  an  action  of  the  case.  An  action  of  tort 
may,  therefore,  now  be  supported  by  proof  of  facts  which  would 
have  been  sufficient  to  maintain  either  of  those  actions."^  In 
general,  trover  cannot  be  joined  with  trespass.*^  But  in  Texas,  in 
an  action  which  embraced  both  trespass  and  trover,  the  plaintiff 
was  held  entitled  to  recover,  on  proof  of  either  cause  of  action.' 
So  a  declaration  contained  a  count  in  trover,  and  one  in  trespass 
de  bon.  asport.,  both  relating  to  the  same  property.  Not  guilty 
was  pleaded  to  both.  Verdict  for  the  plaintiff,  and  motion  in 
arrest  of  judgment.     Held,  not  such  a  misjoinder  as  to  be  fatal  on 

1  Munson  v.  Munson,  24  Conn.  115.  ^  Per  Merrick,  J.,  Holly  v.  Boston,  &c., 

'■2  Gates  V.  Kiett;  7  Cal.  124.  8  Gray,  ISO. 

'■i  Bigelow  V.  Gove.  7  Cal.  133.  *>  Crensliaw  i\  Moore,  10  Geo.  384. 

<  I'er  Brown,  J.,  Budd  v.  Bingham,  18  "^  Carter  v.  Wallace,  2  Tex.  206. 
Barb.  4%. 


320  PLEADING.  [book    III. 

this  motion. 1  So  a  declaration  contained  counts  in  trover  and 
trespass  for  the  same  goods,  the  causes  of  action  being  alleged  to 
be  liie  same.  The  latter  count  further  averred,  that  the  plaintiff 
was  at  the  time  in  the  peaceable  possession  of  the  goods  in  a  store 
kept  by  her  for  tlieir  manufacture  and  sale,  and  that  the  defend- 
ant, by  forcibly  entering  and  taking  possession  of  the  store,  and 
seizing  the  goods,  stopped  her  business  for  a  long  time,  and  caused 
her  great  expense  in  procuring  other  goods.  Held,  this  was 
merely  matter  of  aggravation,  and  the  cause  of  action  alleged  in 
the  latter  count  was  not,  by  reason  thereof,  different  from  that 
alleged  in  the  first  count,  so  as  to  cause  a  misjoinder  of  the 
counts.^ 

§  65.  Trespass  is  the  common-law  form  for  recovery  of  mesne 
profits  in  case  of  disseisin;  but  the  statutory  law  has  often  changed 
the  mode  of  proceeding.     (See  Book  II.) 

§  66.  In  Delaware,  in  an  action  on  the  case  for  mesne  profits, 
with  a  count  in  trespass  for  injury  to  the  premises,  evidence 
may  be  given  of  such  injury.^ 

§  67.  The  Code  of  Ohio  has  substituted  for  the  action  of  tres- 
pass for  mesne  profits  an  action  for  "  damages  for  withholding  real 
property  and  for  rents  and  profits."  Such  cause  of  action  may 
be  united  with  an  action  for  the  recovery  of  real  property.  But 
they  are  separate  causes  of  action,  and  should  be  separately  num- 
bered and  stated  in  the  petition.^ 

§  68.  While  forcible  injuries  to  property  are  redressed  by  the 
actions  of  trespass  qit.  claus.  and  trespass  de  bon.  asjyor.,  trespass 
is  also  the  remedy  for  violence  to  the  person,  or  assault  and  bat- 
tery ;  (oL)  the  pleadings  in  which  may  therefore  be  most  properly 
considered  in  the  present  connection,  (b) 

§  69.  In  an  action  for  an  assault,  the  day  is  immaterial ;  proof 
of  an  assault  on  any  day  before  action  is  sufiicient.^ 

1  Williams  v.  Bramble,  2  Md.  313.  *  McKinney  v.  McKinney,  8  Ohio   (N. 

2  Belden  v.  Grannis,  27  Conn.  511.  S.),  423. 

3  Gooch  V.  Geery,  3  Har.  423.  ^  Palmer  v.  Skillengjer,    5    Har.  234  ; 

Sellars  v.  Zimmerman,  18  Md.  255. 

(a)  The  (N.Y.)  Code  does  not  authorize  whether  such  an  action  could  be  main- 
the  joinder  of  counts  for  assault  and  for  tained  here  ;  because  .  .  .  it  must  be  laid 
slander.     Anderson  r.  Hill,  53  Barb.  238.  to  be  against  the  peace  of  the  king."     Per 

[b)  "If  two  persons  fight  in  France,  Ld.  Mansfield,  Fabrigas  ".  Mostyn,  Cowp. 
and  both  happening  casually  to  be  here,  176.  In  general,  however,  this  action  is 
one  should    bring    an    action   of  a.s.sault  not  local. 

against  the  other,  it  might  be  a  doubt 


CH.    v.]  PLEADING   IN   TRESPASS.  321 

§  70.  The  allegation  of  alia  enormia  is  not  necessary.^ 

§  71.  Legal  and  natural  consequences  need  not  be  specially 
alleged.  Otherwise,  with  damages  of  a  different  description,  such 
as  loss  of  health,  or  destruction  of  clothing.^ 

§  72.  In  a  civil  action  for  rape,  an  allegation  is  sufficient,  that 
"  the  defendant  made  an  indecent  assault  upon  the  plaintiff,  and 
then  and  there  debauched  and  carnally  knew  her,"^ 

§  73.  Where  there  is  but  one  count,  the  plaintiff  cannot  waive 
one  assault,  of  which  he  has  offered  evidence,  and  prove  another.* 
And  evidence  is  admissible  only  of  the  number  of  assaults  alleged 
in  the  declaration.^ 

§  74.  Matters  in  justification,  or  which  might  be  pleaded,  can- 
not be  given  in  evidence  under  the  general  issue  in  mitigation  of 
damages ;  ^  as,  that  the  beating  was  inflicted  by  way  of  punish- 
ment for  misbehavior.'^  But,  under  the  general  issue,  the  defend- 
ant, in  mitigation  of  damages,  may  rely  on  any  part  of  the  res 
gestce,  even  though  a  justification,  if  properly  pleaded  ;  as  the 
plaintiff  cannot  be  surprised  by  evidence  of  what  passed  at  the 
time.^  (a) 

§  75.  The  plea  of  son  assault  demesne  is  a  sufficient  answer  to 
a  declaration  for  assault  and  battery,  though  the  latter  aver  per- 
sonal injuries  to  the  plaintiff,  showing  the  assault  to  have  been  of 
a  very  aggravated  character.  The  question,  whether  the  defend- 
ant used  an  excess  of  force  in  his  own  defence,  is  in  general  to  be 

1  1  Chit.  PI.  348.  6  Lair  v.  Abrams,  5  Blackf.  191. 

2  lb.  346.  ^  Watson  v.  Christie,  2  B.  &  P.  224  ; 
8  Koenig  v.  Nott,  2  Hill,  323.                      Corning  v.  Corning,  2  Selil.  97. 

*  Stante  v.  Pric-ket,  1  Camp.  473.  8  Bingham  v.  Garnault,  Bull.  N.  P.  17  ; 

5  Gilion  V.  Wilson,  3  Monr.  217.  2  Greenl.  Ev.  71,  §  93. 

(rt)  Tiie  answer  to  an  action  for  assault  facts  were  inadmissible  even  in  mitigation 

alleged,  that  the  plaintiff  was  a  niece  and  of  damages.     The  court  make  a  distinc- 

adopted  daugliter  of  tiie  defendant,  and  tion  between  this  case  and  that  cited,  in 

liad  been  eilucated  and  supported  by  him  ;  •which   it  was  held,  that,  where  material 

that,  immediately   before  the  assault,  lie  matter  is  informally  alleged,  or  material 

unexpectedly  met  her  in  a  ]>ublic  street,  matter  is  omitteil  in  a  ])leading  otherwise 

where   his    relations    to    her   were    well  formal,  if  the  party  does  not  demur,  but 

known,  riding  witii  a  man  of  bad  ciiar-  goes  to  trial,  he  is  concluded  by  the  ver- 

acter,  by  whom    slie   had    been    enticed  diet. 

from  his  house  about  a  3'ear  before,  and  "  The  defendant  does  not  set  up  that  he 
taken  to  a  house  of  ill  fame,  kept  by  him,  was  provoked,  by  any  act  of  the  plaintiff, 
and  where  she  had  since  lived  and  was  or  of  any  other  person,  at  any  time,  to 
still  living  ;  and,  in  the  sudden  impidse  commit  tiie  alleged  violence  uiton  her.  It 
of  the  moment,  he  struck  with  his  whip  was  virtually  disclaimed  by  his  answer, 
at  the  man  in  question,  with  the  intention  .  .  .  that  she  was  the  oi)jert  to  wliich  the 
of  hitting  liim,  and  the  blow  accidentally  blows  .  .  .  were  aimed,  or  that  she  had 
fell  on  her.  llelil,  the  answer  was  iinma-  in  any  manner  provoked  him  to  violence." 
terial,  except  so  far  as  it  showed  the  Corning  v.  Corning,  2  Seld.  97  ;  per  Jew- 
injury  to  be  an  accident;  and  the  other  ett,  J., ib.  102. 

21 


322  PLEADING.  [book   III. 

determined  only  upon  the  evidence,  and  this  issue  is  raised  by  the 
reph'cation  of  de  injurid.^  But  this  answer  must  show  that  the 
first  assault  justified  or  excused  the  otlier.^ 

§  76.  In  trespass,  for  a  siniple  assault  and  battery,  a  plea  is 
sufficient,  that  the  defendant  molliter  manus  imposuit,  &c.,  in  his 
reasonable  efforts  to  prevent  the  plaintiff  from  breaking  the  peace 
by  an  assault  upon  a  third  person.  Otherwise,  when  the  declara- 
tion alleges  extraordinary  or  aggravated  force.^ 

§  77.  Trespass,  for  that  the  defendant  '*  assaulted  the  plaintifi", 
and  beat,  bruised,  pushed,  dragged,  and  pulled  about,  kicked, 
wounded,  and  ill-treated  him,  and  then  knocked  down  and  pros- 
trated him  on  the  deck  of  a  certain  vessel,  and  then  hit  and  struck 
him  numerous  blows."  Plea,  "  as  to  the  assaulting,  beating,  and 
ill-treating"  the  plaintiff,  a  justification  by  the  defendant  as  cap- 
tain of  a  vessel  on  board  of  which  the  plaintiff  and  others  were 
passengers,  and  alleging  that  the  plaintiff  made  a  great  noise,  dis- 
turbance, and  affray  on  board  the  said  vessel,  and  was  then  fight- 
ing with  another  person,  "  then  also  being  a  passenger  in  and  on 
board  of  the  said  vessel,  and  whose  name  was  to  the  defendant 
unknown,"  and  was  striving  to  beat  and  wound  the  said  person ; 
wherefore  the  defendant,  as  such  captain,  to  preserve  peace  and 
order,  and  prevent  the  beating  and  wounding  of  such  person, 
gently  laid  his  hands  upon  the  plaintiff,  which  was  the  trespass 
complained  of.  Held,  the  plea  would  have  been  good,  without 
the  statement  that  the  person  with  whom  the  plaintiff  was  fighting 
was  a  passenger,  &c. ;  that  such  statement  did  not  necessarily 
contain  matter  of  description,  and  consequently  require  proof; 
and  that  the  knocking  down  and  prostrating  of  the  plaintiff  was 
alleged  as  a  distinct  trespass,  and  was  not  covered  by  the  plea.^ 

§  78.  To  a  declaration  in  trespass  for  forcibly  ejecting  the  plain- 
tiff from  a  railroad  train,  the  defendant  pleaded  specially,  in  justi- 
fication, that  he  was  the  conductor  of  the  train  ;  that  the  plaintiff 
had  no  ticket,  and  refused  to  pay  his  fare  ;  that  he  required  the 
plaintiff  to  leave  the  train,  and  thereupon  the  plaintiff  did  leave 
the  train  accordingly,  which  was  the  same  ejecting  complained 
of.     Held,  this  was  no  admission  of  the  alleged  trespass,  and  the 

1  Mellen  v.  Thompson,  32  Verm.  407.  *  Noden  v.   Johnson,  2  Eng.  L.  &  Eq. 

'-'  Sclilosser  v.  Fox,  14  Ind.  365.  201. 

"  Mellen  v.  Thompson,  32  Verm.  407. 


CH.    v.]  PLEADING    IN   TRESPASS.  323 

pleas    were    therefore   bad,  as    amounting   only  to    the    general 
issue. 1 

§  79.  If  the  declaration  contain  two  counts,  alleging  different 
assaults  and  batteries,  and  the  plea  justify  only  one,  the  plaintiff, 
by  replying  de  injuria,  waives  the  benefit  of  one  of  the  counts, 
and  cannot  give  evidence  of  an  assault  and  battery  different  from 
the  one  justified.^ 

§  80.  If,  to  a  declaration  for  an  assault  containing  but  one  count, 
a  justification  be  pleaded,  and  the  plaintiff  reply  dc  injuria,  he 
cannot  introduce  testimony  relating  to  any  other  assault  than  the 
one  specified  in  the  pica.     He  should  new-assign.-'^ 

§  81.  W  S071  assault  demesne  be  pleaded,  the  plaintiff  may,  under 
the  replication  de  injurid,  &c.,  prove  that  the  defendant's  battery 
was  excessive,  without  specially  replying  the  excess.* 

§  82.  The  declaration  averred  an  assault  on  the  plaintiff"  while 
sitting  in  his  gig."  The  replication  represented  the  defendant  in 
the  gig,  "  and  the  plaintiff  gently  laid  hands  on  him  and  put  him 
out,"  and  then  the  assault.  Held,  this  was  not  a  departure ;  for 
both  allegations,  though  apparently  discrepant,  might  be  true,  as 
they  did  not  necessarily  refer  to  the  same  exact  point  of  time.^ 

§  83.  The  plea  to  assault  and  battery  was  son  assault  demesne, 
which  the  replication  confessed  and  avoided.  The  rejoinder  sub- 
stantially reitei'ated  the  plea.  Held,  it  was  bad  for  not  traversing 
the  replication.*^ 

§  83  a.  Under  the  plea  of  S07i  assault,  &c.,  and  the  replication 
de  injuria,  &c.,  the  burden  of  proof  is  on  the  defendant.'^ 

§  84.  The  replication  puts  in  issue  only  the  allegations  of  the 
plea.  Hence  the  plaintiff  cannot,  under  it,  prove  new  facts  show- 
ing that  the  plea,  though  true,  is  not  a  justification.  As  that  the 
defendant,  being  in  his  house,  abused  his  family  and  refused  to 
leave;  and,  upon  the  plaintiff's  gently  laying  hands  on  him  to  put 
him  out,  furiously  assaulted  and  beat  him.*^  So  under  this  repli- 
cation to  a  plea,  that  the  acts  were  done  in  defence  of  the  master 
of  the  defendant,  the  plaintiff  cannot  justify  his  own  assault  upon 
the  master.^ 

1  Blond  V.  Adams,  33  Verm.  52.  v.  Simp.son,  1  Cr.,  M.  &  R.  757  ;  Guy  v. 

2  Berry  i:  Borden.  7  Blaekf.  384.  Kitcliiner,  2  Str.  127. 

2  Car|ienler  r.  Crane,  5  ib.  119.  ^  King  v.  riiipjiard,  Carth.  280. 

•*  Fisher  r.  Bridjies,  4  ib.  148.  ^  Webber  ;■.  Liversnch,  I'eake's  Add. 

5  McFarland  v.  Deane,  1  Cheves,  64.  Cas.  51 ;  ace.  Sayre  v.  Kockt'ord,  2  W.  Bl. 

«  Ib.  1165. 

■J  Crogate's  Case,  8  Co.  66  ;  Timotliy 


324  PLEADING.  [book   III. 

§  85.  If  a  party  justified  a  trespass  upon  a  slave  upon  the  ground 
tliat  he  was  a  patrol,  and  the  plaintiff  replied  that  the  punishment 
was  excessive  ;  the  replication  admitted  the  justification  as  alleged, 
and  precluded  the  plaintiff  from  offering  any  evidence  to  dis- 
prove it.^ 

§  86.  In  trespass  for  ejecting  the  plaintiff  from  a  railroad  sta- 
tion, where  the  defence  is  that  it  was  rightfully  done,  the  replica- 
tion, setting  up  the  purchase  of  a  ticket,  and  that  the  plaintiff 
was  waiting  in  the  station  to  take  a  train,  must  allege  that  the 
train  was  expected  soon  to  leave.  But  not,  necessarily,  that  the 
plaintiff  went  into  the  station-house  for  the  purpose  of  travelling 
upon  the  cars,  if  it  appear  that  such  purpose  was  formed  after  his 
entry  and  before  the  assault.^ 

§  87.  In  trespass  for  assault  and  battery,  the  declaration  con- 
tained only  one  count,  and  the  pleas  were,  1.  Not  guilty;  2.  Son 
assault  demesne.  The  plaintiff  new-assigned,  and  the  defendant 
pleaded  not  guilty  to  the  new  assignment.  Held,  the  plaintiff 
was  not  obliged  to  prove  two  trespasses ;  but  only  a  trespass 
differing  from  that  justified,  and  agreeing  with  the  new  assign- 
ment.^ 

1  Tomlinson  v.  Darnall,  2  Head,  538.  3  "West  v.  Rousseau,  7  Blackf.  450. 

2  Harris  v.  Stevens,  31  Verm.  79. 


CH.   VI.]  ACTION   ON   THE  CASE,   INCLUDING  TROVER.  325 


CHAPTER  VI. 

PLEADING  IN  THE  ACTION  ON  THE  CASE,  INCLUDING  TROVER. 

1.  General  rule;  nature  of  the  action.  10.  Negligence;  declaration. 

2.  Nuisance,  negligence,  and  conversion.  13.  Subsefjueiit  pleadings. 

2  a.  Nuisance;  di-tinction  from   trespass;         19  o.  Conversion;  trover  and  case. 

declaration.  20.  Declination. 

7.  Subsequent  pleadings.  25.  Subsequent  pleadings. 

§  1.  Analogous  to  the  action  of  trespass  is  that  of  trespass  on 
the  case,  or,  as  it  is  more  commonly  termed,  the  action  on  the  case. 

§  1  a.  Although  an  action  be  described  in  the  writ  as  trespass 
on  the  case,  yet,  if  the  declaration  show  a  cause  of  action  of  tres- 
pass de  bon.,  the  plaintiff  may  require  the  action  to  be  so  consid- 
ered,^  "  The  declaration  ought  not  in  general  to  state  the  injury 
to  have  been  committed  vi  et  armis,  nor  should  it  conclude  contra 
pacem,  in  which  respects  it  principally  differs  from  the  declaration 
in  trespass.  In  other  points,  the  form  of  the  declaration  depends 
on  the  particular  circumstances  .  .  .  and  consequently  there  is 
greater  variety  in  this  than  in  any  other  form  of  action."  ^ 

§  1  6.  In  an  action  on  the  case  against  a  surgeon  for  unskil- 
fully performing  an  operation,  a  count  may  be  joined,  averring 
that  he  maliciously  pretended  that  he  would  improve  the  appear- 
ance of,  and  restore,  the  eye  of  the  plaintiff,  with  the  intent  to 
defraud  her  of  her  money .^ 

§  1  c.  The  rules  of  pleading  in  this  action  are  comparatively 
few  and  simple,  "  An  action  upon  the  case  is  founded  upon  the 
mere  justice  and  conscience  of  the  plaintiff's  case,  and  is  in  the 
nature  of  a  bill  in  equity,  and,  in  effect,  is  so.  Whatever  will,  in 
equity  and  conscience,  according  to  the  circumstances  of  the  case, 
bar  the  plaintiff's  recovery,  may,  in  this  action,  be  given  in  evi- 
dence, because  the  plaintiff  must  recover  upon  the  justice  and 
conscience  of  his  case."  *  "  The  plea.  ...  is  usually  the  general 
issue,  not  guilty  ;  and  under  it  (except  in  an  action  for  slander 

1  Tlie  Wliite,  &c.  v.  Dow,  1  Cart.  141.  *  Per  Lord  Mansfield,  Bird  v.  Randall, 

2  1  Cliit.  PI.  147.  3  Burr.  1353. 

3  CadweU  v.  Farrell,  28  111.  438. 


326  PLEADING.  [book   III. 

and  a  few  other  instances)  any  matter  may  be  given  in  evidence, 
but  the  Statute  of  Limitations."  ^ 

§  2,  We  shall  hereafter  consider  the  specific  injuries  for  which 
this  action  is  the  prescribed  remedy.  In  the  present  connection 
it  may  be  stated,  that,  in  general,  it  is  brought  either  for  nuisance, 
negligence,  or  conversion. 

§  2  a.  As  we  have  already  seen  (Chap.  IV.),  the  points  of  dis- 
tinction between  case  and  trespass  are  often  very  nice.  They  are 
illustrated  by  a  recent  decision  in  Massachusetts,  relating  to  an 
action  for  nuisance. 

§  3.  Declaration,  that  the  plaintiff  was  lawfully  possessed  of  a 
certain  close,  and  the  defendant,  "  well  knowing  the  premises, 
wrongfully  and  injuriously  kept  and  continued  a  building  project- 
ing and  overhanging  the  plaintiff's  said  close,  and  before  then 
wrongfully  erected  and  built,  projecting  as  aforesaid,  for  a  long 
space  of  time."  Held,  an  action  of  tort  for  a  nuisance,  and,  the 
plaintiff  having  prevailed,  that  the  defendant  could  not  except 
to  an  order  of  court  entering  judgment  that  it  be  abated.  The 
court  remark  in  reference  to  this  declaration  :  *'  It  has  not  the 
peculiar  characteristics  of  an  action  of  trespass.  .  .  .  There  is  no 
allegation  that  the  wrong  or  injury  was  committed  '  with  force 
and  arms '  or  *  forcibly.'  It  may  be  that  an  action  of  trespass 
might  have  been  brought  for  the  erection  and  continuance  of  the 
structure  .  .  .  and  that,  on  proof  of  the  plaintiff's  title,  and  of 
the  facts  and  circumstances,  .  .  .  such  action  would  be  the  only 
appropriate  and  proper  remedy.  But  that  is  not  the  question 
before  us  on  this  record.  We  are  not  called  on  to  decide  a  ques- 
tion of  variance,  .  .  .  but  only  to  determine  the  nature  of  the 
action."  ^  («) 

§  3  a.  In  another  recent  case,  where  a  declaration  in  case  al- 
leged tliat  a  railroad  engine,  by  the  negligence  of  the  defendants' 
servants,  was  run  upon  the  intestate,  whereby  he  was  killed,  the 
court  remark :  "  The  defendants  .  .  .  urge  that,  as  the  action  is 
case,  consequential  damages  are  necessary  as  the  gist  of  the  action, 
while  there  are  none  here  alleged,  inasmuch  as  the  plaintiff's  in- 

1  1  Chit.  PI.  147.  2  Codman  v.  Evans,  7  Allen,  431 ;  per 

Bigelow,  C.  J.,  ib.  433. 

(a)  An  action    for  creating  a  private    tion  of  the  petition  is  necessary.     Ray  ?;. 
nuisance  is  an  action  for  an  injury  to  tlie     Sellers,  1  Duv.  254. 
person,  and,  under  the  Code,  no  verifica- 


CH.   VI.]  ACTION   ON   THE   CASE,   INCLUDING   TROVER.  327 

testate  was  killed  instantly.  .  .  .  Althongli  the  form  of  action  is 
case,  as  it  must  be,  of  course,  if  the  defendants  are  liable  at  all, 
.  .  .  the  injury  is  none  the  less  direct  and  positive  than  if  tres- 
pass was  the  form."  ^ 

§  3  6.  The  declaration  need  not  show  that  the  plaintiff  has  a 
freehold  estate  in  the  premises  affected  by  the  nuisance  ;  but  it 
is  enough  that  he  is  in  possession.^ 

§  4.  It  is  not  necessary  to  give  a  local  description  to  the  nui- 
sance, in  an  action  on  the  case  for  diverting  the  water  of  a  naviga- 
tion ;  and  therefore  if  it  be  doubtful,  whether  the  place  where 
such  navigation  is  stated  to  be  is  laid  in  the  declaration  as  a 
venue  or  as  local  description,  it  will  be  referred  merely  to  venue, 
and  need  not  be  proved  to  be  at  such  a  place  ;  but  it  is  sufficient 
if  it  be  at  any  other  place  within  the  county.-^ 

§  5.  Where  the  count,  in  an  action  of  nuisance,  alleged  that  the 
nuisance  was  beloiv  the  plaintiff's  land,  and  the  proof  was  that  it 
was  adjoining  and  on  the  plaintiff's  land  ;  held,  the  variance  was 
fatal. 4 

§  6,  In  case  for  the  disturbance  of  a  ferry,  a  count,  alleging  that 
the  plaintiffs  were  entitled  to  a  certain  ferry  across  the  Thames, 
and  that  the  defendant  conveyed  passengers  and  goods  across  the 
river  near  to  the  plaintiffs'  ferry,  and  that,  by  reason  thereof,  the 
plaintiffs  lost  profits,  and  were  prejudiced  and  disturbed  in 
the  possession  and  profit  of  their  ferry  ;  was  held,  after  verdict 
for  the  plaintiffs,  to  disclose  a  sufficient  cause  of  action.^ 

§  7.  To  a  declaration  in  case  for  an  injury  arising  from  smoke 
issuing  out  of  the  defendant's  factory  chimneys,  the  defendant 
justified  under  a  prescriptive  right.  This  plea  was  traversed, 
and  the  plaintiff  new-assigned.  It  was  proved  that  one  of  the 
chimneys  had  been  erected  for  more  than  twenty  years.  Held, 
upon  the  issue  raised  by  the  traverse,  the  defendant  was  en- 
titled to  the  verdict.^  The  remarks  of  the  judges  will  show  the 
particular  grounds  of  the  decision  :  "  If  this  were  an  action  of 
trespass  and  this  a  plea  of  justification,  it  would  not  be  sufficient 
to  entitle  the  plaintiff  to  recover,  because  a  justification  being 
pleaded,  the  defendant  would  have  a  right  to  apply  that  justifica- 
tion to  the  trespass  proved ;  and  then,  if  there  were  any  excess, 

1  Per  Ellsworth,  J.,  Murphy  v.  N.  Y.  *  Brown  v.  Woodworth,  5  Barh.  550. 
&c.,  30  Conn.  187.                                                    6  Eiacketer  r.  fJillott,  9  Com.  B.  20. 

2  Comes  V.  Harris,  1  Comst.  223.  6  Bennett  i-.  Thompson,  37  Eng.  L.  & 

3  Mersey,  &c.  v.  Douglas,  2  East,  497.  Eq.  51. 


328  '        PLEADING.  [book   III. 

the  plaintiff  ought  to  have  new-assigned.  .  .  .  But  it  is  said,  that 
there  is  a  distinction  between  an  action  of  trespass  and  an  action 
like  this  upon  the  case ;  and  that,  as  the  action  upon  the  case 
stood  formerly,  the  plaintiff  was  not  bound  to  prove  the  wliole  of 
the  declaration.  But  since  the  new  rules,  a  party  relying  upon 
an  easement  must  plead  that  specially,  which  makes  it  the  same 
as  trespass,  .  .  .  We  must  consider  this  as  an  action  of  trespass 
to  which  a  plea  of  justification  is  pleaded  and  proved  .  .  .  other- 
wise the  plaintiff  might  recover  for  the  whole  .  .  .  whereas  .  .  . 
as  to  part  the  defendant  was  justified."  ^  "  The  defendants  plead 
that  they  had  an  easement  for  the  smoke,  and  this  easement  is 
traversed  and  found  for  the  defendant  [sj.  .  .  .  The  replication 
traverses  the  easement  ...  as  to  some  part  of  the  subject-matter ; 
and  if  it  had  said  that  they  had  a  right  to  an  easement  for  the 
smoke  from  the  four  chimneys,  that  would  have  been  divisible  ; 
but  they  only  claim  an  easement  as  to  one,  and  that  being  trav- 
ersed is  found  for  the  defendants."  ^ 

§  8.  In  an  action  for  a  nuisance  originally  brought  on  the  1st 
of  April,  but  the  declaration  in  which  had  been  amended  under 
a  judge's  order  by  making  it  the  19th  of  April,  the  defendant 
pleaded,  except  as  to  alleged  grievances  committed  by  him  before 
April  15,  not  guilty,  and  paid  money  into  court  in  respect  of  the 
grievances  before  that  date.  A  rule  to  show  cause  why  these 
pleas  should  not  be  struck  out  or  amended  was  refused.^ 

§  9.  In  trespass  on  the  case  for  destroying  the  plaintiff's  com- 
mon in  six  acres,  a  justification  in  three  acres  only  is  ill."^ 

§  9  a,  A  statute  provided  as  follows :  "  The  plaintiff  may 
unite  injuries  with  or  without  force  to  the  person ;  injuries  with 
or  without  force  to  the  property,  &c.  But  the  causes  of  action 
.  .  .  must  belong  to  one  only  of  these  classes."  Under  this 
statute,  injuries  both  to  person  and  property,  from  an  act  of 
negligence,  may  be  joined  in  the  same  complaint.  '*  The  plaintiff 
has  not  united  several  causes  of  action.  .  .  .  He  has  stated  only 
one.  .  ,  .  The  legislature  .  .  .  must  have  had  reference  to  the 
causes  of  action  as  they  were  then  bounded,  limited,  and  defined 
by  the  common  law.  .  .  .  This  167th  section,  instead  of  severing 
causes  of  action  .  .  .  was  intended  to  lessen  suits,  by  allowing  the 

1  Per  Coleridge,  J.,  37  Eng.  L.  &  Eq.  3  Fountain  v.  Chamberlain,  37  Eng.  L. 
53.                                                                          &  Eq.  260. 

2  Per  Crompton,  J.,  ib.  *  Mosse  v.  Bennett,  8  Mod.  120,  121. 


CH.  VI.]      ACTION  ON  THE  CASE,  INCLUDING  TROVER.        329 

plaintiff  to  bring  into  tlie  same  suit  any  number  of  assaults  com- 
mitted upon  distinct  and  independent  occasions.  And  so  he  may 
join,  in  the  same  action  with  assault  and  battery,  any  other  injury 
to  the  person.  .  .  .  The  Code  does  not  abolisii.  .  .  .  the  causes  of 
action  .  .  .  nor  .  .  .  define  what  shall  constitute  a  cause  of  ac- 
tion ,  .  .  The  69th  section  has  abolished  the  forms  of  the  action, 
but  it  leaves  .  .  .  the  causes  as  they  were."  ' 

§  10.  Negligence  is  a  question  of  fact,  or  mixed  law  and  fact.^ 
Hence  a  declaration  for  negligence,  generally,  is  held  good.^ 
So  it  is  not  necessary  to  aver  gross  negligence.  When  the 
right  of  recovery  depends  on  the  degree  of  negligence,  it  is 
a  matter  of  proof,  and  not  of  pleading.^  In  actions  for  per- 
sonal injuries,  resulting  from  negligence,  it  is  sufficient  to  al- 
lege, in  general  terms,  that  the  injury  was  occasioned  by  the 
carelessness  of  the  defendant,  without  setting  forth  the  cir- 
cumstances to  show  it.  An  allegation  of  the  extent  of  the  in- 
jury, and  of  the  manner  in  which  it  was  inflicted,  is  sufficient. 
Thus  a  petition  by  an  administratrix,  alleging  that  the  defendant, 
by  means  of  his  wilful  neglect,  shot  and  killed  her  said  husband, 
to  her  great  damage,  &c.^ 

§  10  a.  It  is  held  that  a  declaration  in  case,  alleging  both  neg- 
ligence and  malice,  is  sustained  by  proof  of  the  former  alone.^ 
So  an  allegation,  that  an  act  was  wilfully  and  maliciously  done,  is 
sustained  by  proof  that  it  was  done  carelessly,  and  resulted  inju- 
riously to  the  plaintiff.'^  So  in  an  action  for  negligence,  where 
three  counts  aver  gross  negligence,  while  another  count  avers 
negligence  only ;  a  plea  to  the  whole  declaration  is  held  bad  on 
demurrer.^  So  in  a  suit  for  a  fall  into  an  area  in  a  public  side- 
walk, a  declaration,  that  the  defendant  "  dug,  opened,  and  made  " 
the  area,  is  sustained  by  evidence  that  it  was  caused  by  him, 
whether  by  excavation,  or  by  raising  the  sidewalk,  or  by  both.^ 
So  the  declaration  for  neglect  to  sue  on  a  bond  charged  that  the 
neglect  was  wilful.  Held,  the  charge  not  being  material  or  tra- 
versable, a  plea,  merely  denying  it,  was  bad.^*^     So  a  complaint, 

1  Howe  i'.  Peckliam,  10  Barb.  65G ;  per         »  Chiles  v.  Drake,  2  Met.  (Ky.)  146; 

Mason,  J.,  ib.  658.  Strain  v.  Strain,  14  111.  368. 

-  McCauley   v.   Davidson,     10   Minn.  «  Panton  v.  lloilaiHl,  17  Johns.  92. 

418.  •?  McCord  v.  IIIkIi,  24  Iowa,  386. 

8  Indianapolis,  &c.  v.  Keeley,  23  Ind.  8  Illinois,  &c.  K.  R.   Co.  v.   Head,  37 

133.  111.  484. 

*  Chicago,  &c.  V.  Carter,  20  Dl.  390.  »  K()bl)ins  v.  Chicago,  4  Wall.  657. 

10  Marshall!;.  Hamilton,  41  Miss.  229. 


330  PLEADING.  [book   III. 

that  the  defendants'  reservoir,  by  reason  of  some  fault  in  its  con- 
struction, or  some  carelessness  and  mismanagement  on  the  part 
of  the  defendants,  broke  away,  &c.,  is  good  under  tiie  practice  of 
California.  Negligence  in  the  construction  and  in  the  manage- 
ment need  not  be  set  out  as  distinct  causes  of  action,  in  distinct 
counts.^ 

§  10  b.  In  an  action  for  injury  caused  by  the  careless  driving 
of  a  servant,  the  court  refused  an  order  for  particulars  of  the 
injury  .2 

§  11.  In  declaring,  under  the  Code  of  Alabama,  for  neglecting 
to  use  due  diligence  in  the  collection  of  a  judgment,  out  of  the 
proceeds  of  which,  when  collected,  the  defendant  had  promised 
in  writing  to  pay  a  specified  amount;  it  is  not  necessary  to  aver 
in  what  respect  he  had  failed  to  use  due  diligence;  an  allegation, 
that  "  he  has  failed  and  omitted  to  do  so  from  mere  neglect,"  is 
sufficient.^ 

§  11  a.  Declaration,  that  the  defendant  had  received  money  and 
given  his  receipt  therefor  to  the  plaintiff,  specifying  that  certain 
land  was  to  be  entered  therewith ;  that,  relying  on  the  assurance 
of  the  defendant,  the  plaintiff  had  conveyed  the  same  to  B,  for 
whose  use  the  action  was  brought,  and  that  since  that  time  one  G- 
had  entered  the  land.  The  defendant  demurred,  for  the  reason 
that  it  did  not  appear  that  the  plaintiff  had  been  dispossessed,  nor 
that  the  original  receipt  had  been  assigned  to  B,  nor  whether  he 
had  given  a  warranty  deed  to  B.  Held,  these  facts  need  not 
appear  ;  that  the  gravamen  of  the  action  was,  that  by  the  defend- 
ant's neglect  to  enter  the  land  the  plaintiff  had  never  had  any 
title  or  possession  ;  and  that,  though  suing  for  the  use  of  B,  B's 
claims  need  not  appear,  as  the  nature  of  them  could  not  affect  the 
right  of  the  plaintiff  to  maintain  the  action.* 

§  11  h.  The  second  count  of  a  declaration  stated  that  a  mes- 
suage and  land,  the  reversion  whereof  belonged  to  the  plaintiff, 
were  supported  by  the  land  adjoining;  yet  the  defendant  wrong- 
fully and  negligently  dug  and  made  excavations  in  the  land  ad- 
joining, without  suflSciently  shoring  the  messuage  and  land,  and 
thereby  deprived  them  of  their  support,  whereby  they  sank  and 
were  injured.     The  third  count  stated,  that  the  plaintiff,  by  reason 

1  Hoffman  v.  Tuolumne,  &c.,  10  Cal.  3  Gliddon  v.  McKinstry.  25  Ala.  246. 
413.                                                                         *  Scott  V.  Granger,  3  Clarke  (Iowa), 

2  AVicks  V.  Macnamara,  3  Hurl.  &  N.  447. 
5G8. 


CH.    VI.]  ACTION   OS   THE    CASE,    INCLUDING    TROVER.  331 

of  her  said  interest  in  the  messuage  and  land,  was  entitled  to 
have  the  messuage  supported  laterally  by  certain  land  adjoining  ; 
yet  the  defendant  wrongfully  and  negligently  dug  and  made  divers 
excavations  in  the  land  adjoining,  without  sufficiently  shoring  the 
said  messuage  and  land,  and  thereby  deprived  the  messuage  of 
the  support  to  which  the  plaintiff  was  so  entitled,  whereby  the 
messuage  and  land  sank  and  were  injured.  Held,  the  second 
count  was  good,  although  it  did  not  allege  any  right  to  support; 
for,  as  it  did  not  appear  that  the  defendant  was  the  owner  of  the 
adjoining  land,  he  must  be  taken  to  be  a  stranger  and  a  wrong- 
doer.    Also,  that  the  third  count  was  good.^ 

§  12.  More  especially,  in  a  count  for  negligence,  the  particulars 
in  which  such  negligence  consisted  are  not  required,  Avhere  they 
lie  more  properly  in  the  knowledge  of  the  adverse  party .^  And 
any  defect  in  this  respect  will  be  cured  by  verdict.  Thus  in  an 
action  against  an  attorne}',  for  negligence,  it  was  alleged  that 
"  the  defendant  did  obtain  judgment  for  the  plaintiff,  on  said  notes 
and  accounts,  and  did,  without  the  consent  of  the  plaintiff,  and 
contrary  to  his  express  directions,  undertake  to  settle  and  adjust 
such  claims  with  said  P.,  and  did  not  follow  the  instructions  of 
the  plaintiff;  but  so  carelessly  and  negligently  conducted  the  said 
trust,  that  the  said  debt  has  never  been  paid  or  collected,  and  the 
plaintiff  has  wholly  lost  the  attachment,"  <fec.  On  motion  in 
arrest  of  judgment,  held,  that,  if  the  declaration  was  defective,  in 
not  setting  out  any  specific,  particular  act  of  negligence,  the  defect 
was  cured  by  the  verdict.^ 

§  12  a.  But  a  declaration  against  a  city,  that  they  wrongfully 
suffered  a  street  to  be  out  of  repair,  and  wrongfully  suffered  water 
to  run  on  to  the  plaintiff's  land,  does  not  show,  as  it  should,  that 
it  is  from  negligent  want  of  repair  that  the  water  is  suffered  to 
run  on  the  plaintiff's  land.*  •  So  in  an  action  by  the  holder  of  a 
tax  deed  to  bar  the  original  owner,  under  (Wis.)  L.  of  1859,  c.  22, 
an  answer,  averring  that  the  treasurer  was  negligent  "  in  not 
properly  giving  notice  of  the  proposed  sale  of  the  said  land  for 
delinquent  tax,"  and  that  the  clerk  "  failed  to  advertise,  as  re- 
quired by  law,  the  time  when  the  period  allowed  by  law  to  redeem 
from  the  tax-sales,  for  the  delinquent  taxes  of  1859,  would  expire," 

1  Bibhy  v.  Carter,  4  Hurl.  &  N.  153.  s  Wilson  v.  Coffin,  2  Cusli.  316. 

2  Eklridge  v.  Long  Island,  &c.,  1  Sandf.  *  Montgomery  r.  Gilmer,  33  Ala.  116. 
89. 


332  PLEADING.  [book   III. 

is  defective,  in  not  specifying  the  particulars  relied  on.  An 
averment  of  the  treasurer's  neglect  "  in  omitting  to  give  notice 
in  one  public  newspaper  of  all  the  lands  in  R.  county  upon  which 
taxes  were  delinquent  for  the  year  1859,"  is  a  negative  pregnant, 
and  tenders  an  immaterial  issue.  It  is  enough  that  proper  notice 
was  published  of  the  lands  conveyed.^  So,  in  case  against  an 
attorney  for  negligence,  the  declaration  alleged  a  retainer  to 
examine  a  title,  and  to  cause  and  procure  an  estate  in  fee-simple 
to  be  conveyed  to  the  plaintiff,  and  alleged  as  a  breach  that  the 
attorney  advised  the  plaintiff  to  purchase  without  having  an  unen- 
cumbered title.  Held,  the  existence  of  encumbrances  did  not 
disturb  the  fee,  and  the  retainer  as  alleged  was  not  broad  enough 
to  cover  the  breach.  Also,  that  the  declaration  should  state  what 
the  encumbrances  were.^  So  in  an  action  to  recover  money, 
which  was  advanced  on  cotton,  received  and  stored  by  the  plain- 
tiff, and  destroyed  by  fire  before  repayment  of  the  advance,  with- 
out his  fault  or  negligence  ;  all  these  facts  should  be  averred  in 
the  petition,  and  not  merely  an  advance  and  promise  of  repay- 
ment.^ So  an  allegation  in  a  suit  against  a  constable,  that  the 
plaintiff  **  believes  the  defendant  has  collected,  &c. ;  if  he  has  not, 
it  is  his  own  neglect,"  is  insufficient.  A  constable  is  liable  for 
failure  to  collect  a  debt,  when  by  proper  diligence  he  might  have 
collected  it;  but  an  averment  that,  "  if  he  did  not  collect  it,  it 
was  his  own  fault,"  does  not  bring  the  case  within  the  above  pro- 
vision.* 

§  13.  Where  the  plaintiff  sues  to  recover  the  value  of  horses 
shipped  on  the  defendants'  boat,  and  alleged  to  have  died  of  a 
disease,  contracted  in  consequence  of  the  negligence  and  want  of 
skill  of  those  in  charge  of  the  boat,  in  removing  the  horses  from 
one  part  of  the  boat  to  another;  under  the  general  denial,  it  is 
competent  for  the  defendants  to  give  in  evidence  all  circumstances 
going  to  relieve  the  act  of  removal  of  the  character  of  a  tortious 
violation  of  the  contract  between  the  parties,  by  assigning  a  rea- 
sonable necessity  for  such  removal.^ 

§  14.  An  answer  to  a  complaint  for  injury  caused  by  the  neg- 
ligence of  the  defendant's  agents,  which  denies  every  allegation 
in  the  complaint,  but  does  not  allege  that  the  injury  was  done  by 

1  Sayles  v.  Davis,  22  Wis.  225.  *  Walters  v.  Chinn,  1  Met.  (Ky.)  499. 

2  Elder  r.  Bogardus,  Hill  &  Denio,  116.  5  Elliot  v.  Steamboat,  &c.,  12  La.  An. 

3  Grimes  v.  Hagood,  19  Tex.  246.  212. 


CH.  VI.]      ACTION  ON  THE  CASE,  INCLUDING  TROVER.        333 

other  persons,  who  were  responsible  therefor,  and  not  the  defend- 
ant, puts  in  issue  his  liability.^ 

§  15.  It  is  a  good  answer  to  a  complaint  for  negligently  leaving 
building  materials  on  the  highway,  which  alleges  the  defendant's 
right  so  to  leave  them,  and  the  negligence  of  the  plaintiff  in  driv- 
ing carelessly  upon  them.'-^ 

§  16.  The  plaintiff  in  an  action  on  the  case,  instituted  before 
the  new  (Missouri)  Code  of  Practice,  alleged  that  the  defendant, 
on  a  specified  day  of  the  month,  not  naming  the  day  of  the  week, 
wrongfully  and  negligently  set  fire  on  his  own  land,  which  ex- 
tended to  the  plaintiff's  land,  and  burned  his  fence.  At  the  trial, 
he  brought  to  the  notice  of  the  court,  that  the  specified  day  of 
the  month  was  Sunday,  and,  the  act  being  unlawful,  the  defendant 
was  responsible  for  all  the  consequences.  Held,  under  this  dec- 
laration, that  ground  of  recovery  could  not  be  made  available.'^ 

§  17.  Declaration  against  the  defendants,  ship-owners,  for  neg- 
ligently and  carelessly  stowing  salt-cake  whereby  it  sustained  dam- 
age. Fourth  plea;  that  the  damage  complained  of  arose  from 
the  salt-cake  being  delivered  by  the  plaintiffs  in  bulk  and  not  in 
casks,  and  being  shipped  by  the  plaintiffs  in  bulk,  and  conse- 
quently stowed  by  the  defendants  in  bulk,  and  not  in  casks,  and 
between  and  amongst  other  goods  ;  and  that  the  same  was  stowed 
in  the  manner  in  which  the  same  was  actually  stowed,  with  the 
knowledge,  and  by  the  direction  and  license,  of  the  plaintiffs  to 
the  defendants  given  before  and  during  such  stowage,  <fcc.  Held, 
this  plea  did  not  amount  to  an  allegation,  that  the  negligent  stow- 
age took  place  by  the  authority  of  the  plaintiffs,  and  was  no  answer 
to  the  action.* 

§  18.  Fifth  plea;  that  salt-cake  was  a  corrosive  substance, 
rotting  casks  and  other  substances  being  in  contact  with  it,  which 
the  plaintiffs  knew,  but  which  the  defendants,  without  any  default 
on  their  part,  did  not  know,  and  could  not  reasonably  be  expected 
to  know,  until  after  the  happening  of  the  damage;  that  it  was  the 
duty  of  the  plaintiffs  to  have  informed  the  defendants  of  the  de- 
structive nature  of  salt-cake,  in  order  to  its  proper  and  safe  stow- 
age by  them ;  that  the  plaintiffs  did  not  so  inform  the  defendants, 
or  ascertain  that  they  were  so  informed,  but,  on  the  contrary, 

1  Schular  v.  Hudson.  &c.,  38  Barb.  653.         ■•  Hutchinson  i;.  Guion,  5  C  B.  (N.  S.) 

2  Wood  V.  Mears,  12  Ind.  515.  149. 

3  Martin  v.  Miller,  20  Mis.  391. 


334  PLEADING.  [book   HI. 

negligently  delivered  the  salt-cake  to  the  defendants  in  bulk,  and 
thereby  and  otherwise  represented  to  the  defendants  and  induced 
them  to  believe,  and  they  did  reasonably  believe,  that  the  said 
salt-cake  might  be  placed  in  contact  with  casks,  &c. ;  that,  under 
this  reasonable  belief,  and  induced  as  aforesaid,  the  defendants 
stowed  the  said  salt-cake  in  contact  with  and  between  and  amongst 
casks  of  salt  provisions,  being,  as  they  reasonably  believed,  a  safe 
and  proper  mode  of  stowing  the  same ;  and  that  afterwards,  and 
without  default  of  the  defendants,  the  said  salt-cake  corroded, 
rotted,  and  destroyed  the  said  casks,  and  the  hoops  thereof,  and 
the  brine  therefrom  damaged  the  salt-cake,  and  caused  the  default 
in  the  delivery  thereof  complained  of  in  the  declaration.  Repli- 
cation :  that  salt-cake  is  an  article  of  merchandise  well  known  in 
trade  and  commerce,  and  the  nature  and  properties  of  which  are 
well  known  in  trade  and  commerce,  and  is  an  article  of  merchan- 
dise commonly  carried  in  ships,  and  the  nature  and  properties  of 
which  are  commonly  and  well  known  to  persons  carrying  on  the 
trade  and  business  of  carriers  by  water  ;  and  that,  at  the  time  of 
the  shipment,  the  defendant  well  knew  that  the  goods  were  salt- 
cake.  Held,  that  the  fifth  plea  was  good,  and  the  replication  no 
answer  to  it ;  for,  if  the  defendants'  ignorance  arose  from  the 
wilful  misrepresentation  of  the  plaintiffs,  such  ignorance  was  jus- 
tifiable.! 

§  19.  A  demurrer  to  a  declaration  admits  the  facts  alleged,  for 
the  sole  purpose  of  raising  the  question  of  law  whether  the  dec- 
laration presents  a  cause  of  action.  Upon  a  hearing  in  damages, 
after  the  overruling  of  a  demurrer,  the  case  stands,  with  refer- 
ence to  the  evidence  necessary  for  the  plaintiff  and  admissible  for 
the  defendant,  precisely  as  it  would  have  stood  upon  a  default. 
In  the  absence  of  proof  of  actual  damage  on  such  a  hearing,  the 
plaintiff  is  entitled  to  nominal  damages  only.  And  the  admissions 
of  the  demurrer  are  applicable  even  to  the  principal  wrongful  act, 
only  in  its  relation  to  the  question  whether  there  is  a  cause  of 
action,  and  not  at  all  in  its  relation  to  the  question  of  damages. 
Where,  therefore,  in  an  action  on  the  case  for  damages  caused 
by  the  negligent  acts  of  the  defendant,  the  plaintiff  had  alleged 
in  detail  sundry  acts  of  the  defendant  going  to  constitute  the 
principal  wrongful  act;  held,  it  was  incumbent  upon  him, on  such 

1  5  C.  B.  (N.  S.)  149. 


CH,    VI.]  ACTION    ON   THE   CASE,    INCLUDING    TROVER.  335 

a  hearing  in  damages,  to  prove  tliese  facts,  and  tlie  defendant 
might  introduce  evidence  in  contradiction,  and  might  sliow  that 
wrongful  acts  of  the  plaintiif  himself  entered  into  the  transaction, 
and  that  some  portion  of  the  damage  claimed  was  attributable 
thereto.^ 

§  19  a.  Trover,  the  action  brought  for  the  injury  of  conversion, 
is  technically  an  action  on  the  case.  Case  and  trover  may  be 
joined  in  different  counts  in  the  same  declaration.^  It  is  some- 
times necessary,  however,  to  distinguish  one  from  the  other. 
Thus  a  count,  alleging  that  under  a  contract,  by  which  the  defend- 
ant hired  a  slave  from  the  plaintiff,  to  be  used  and  employed  as  a 
cook  in  a  specified  city,  it  became  the  defendant's  duty  to  employ 
the  slave  there  in  that  capacity,  and  not  otherwise  or  elsewhere ; 
that  the  defendant,  disregarding  his  duty  in  tliat  behalf,  employed 
said  slave  as  a  field-hand  on  a  plantation ;  and  that  hy  means 
thereof  said  slave  died,  and  was  wholly  lost  to  the  plaintiff:  is  a 
count  in  trover  and  not  in  case.^  So,  in  New  York,  a  conversion 
and  a  breach  of  duty  are  distinct  causes  of  action;  and  therefore 
proof  of  one,  under  an  allegation  of  the  other,  is  a  fatal  variance, 
not  to  be  cured  under  the  Code  by  amendment.*  (a)  The  re- 
marks of  the  court  explain  the  nature  of  the  case,  the  grounds  of 
distinction  between  these  causes  of  action,  and  the  proper  limita- 
tions in  construing  the  statute  referred  to :  "  An  action  for  con- 
version will  not  lie  against  an  agent,  for  selling  under  the  price 
fixed,  .  .  .  else  the  purchaser  would  get  no  title.  No  one  .  .  . 
would  pretend  that  the  purchaser  did  not  get  a  good  title." 
Therefore  "  the  sale  could  not  be  tortious.  ...  It  is  not  the  want 
of  authority,  but  the  exercise  of  it  contrary  to  the  measure  pre- 
scribed, which  constitutes  the  wrong.  ...  If  the  evidence  had 
proved  a  conversion  of  the  property  by  some  act  of  the  defendant 
other  than  that  alleged,  ...  it  would  have  been  a  variance,  and 
amendable  within  the  provisions  of  the  Code.  But  ...  it  was 
just  the  case  of  a  failure  of  proof  of  the  allegation  of  the  cause  of 

1  Havens  r.  Hartford,  &c.,  28  Conn.  69.  *  Moore  v.   McKibbin,  33  Barb.   246; 

2  Wilkinson  v.  Moseley,  30  Ala.  502.        per  Jolinsou,  J.,  ib.  248. 

3  Ib. 

(a)   Under   Ist   subdivision  of  §  107  of        A  count  for  tlie  conversion  and  a  count 

tbe    Code,   a   cause   of  action  against  a  for  tbc  detention  of  goods  ought  not  to  be 

carrier  for   waste  or  conversion   may  be  allowed,  imlcss    a   judge  at   ehauiliers  is 

joined  witb  a  claim  to  recover  back  freight  satisfied  that   substantial  justice  requires 

overpaitl  on  the  same  goods.     Adams  v.  that  thev  sliould  be  joined.     Mocklord  v. 

Bisseli,  28  Barb.  382.  Taylor, "19  C.  B.  (N.  S.)  209. 


336  PLEADING.  [book   III. 

action,  in  its  entire  scope  and  meaning.  Altliough  forms  of  action 
are  abolished  by  the  Code,  causes  of  action  are  not.  They  remain 
distinct  and  distinguishable  as  they  ever  were,  and  ever  must  be, 
while  legal  rules  regulate  the  conduct  and  dealings  of  men  with 
each  other."  But  in  an  action  by  the  reversioner,  against  one 
having  the  life-estate  and  another,  for  injuries  to  the  inheritance 
and  reversion,  the  complainant  may  state  a  cause  of  action  for 
wrongfully  cutting,  removing,  and  converting  wood,  and  also  a 
cause  of  action  for  drawing  off  the  wood  which  had  been  cut,  and 
converting  it.  The  distinction  is  made,  that  these  causes  of 
action,  followed  by  averments  of  injury  to  the  inheritance  and 
reversion,  may  be  united,  under  the  New  York  Code,  if  they 
affect  all  parties  to  the  action.  But  if  either  cause  of  action  is 
against  only  one  of  the  defendants,  it  cannot  be  united  with  that 
against  both.^ 

§  20.  Trover  is  a  transitory  action,  and  the  venue  may  be  laid 
in  any  county,  even  though  the  conversion  were  committed  out 
of  the  jurisdiction  of  the  State  courts.^ 

§  21.  It  is  always  necessary  to  allege  the  time  of  taking  the 
goods,  although  not  the  true  time.^ 

§  21  a.  The  defendant  is  not  entitled,  as  of  right,  under  the  New 
York  Code,  to  a  particular  statement  or  description  of  the  goods. 
But  the  ordering  of  such  a  statement  is  a  matter  in  the  discretion 
of  the  court.* 

§  21  h.  An  omission  to  aver  the  value  of  the  property  is  cured 
by  verdict.^  But  a  count,  not  stating  that  the  plaintiff  is  possessed 
of  the  thing  as  of  his  own  property,  is  defective,  and  not  cured  by 
verdict.'^ 

§  22.  Where  trover  was  brought  by  trustees,  in  whom  the  legal 
title  was  vested,  for  conversion  of  the  trust  property,  and  they 
alleged  in  their  declaration  that  they  sued  "  for  and  in  behalf"  of 
the  cestuis  que  trust ;  held,  the  trustees  were  the  real  party 
plaintiffs,  and  the  words  "  for  and  in  behalf,"  &c.,  were  surplus- 
age." 

§  23.  A  declaration  in  trover,  after  describing  a  promissory 
note  of  the  plaintiff's,  its  loss,  and  its  finding  by  the  defendant, 

1  Rodfrers  v.  Rodgers,  11  Barb.  595.  <  Blackie  v.  Neilson,  6  Bosw.  681. 

2  Robinson  v.   Armstrong,  34  Maine,  ^  Carter  v.  Wallace,  2  Tex.  206. 
145.  6  Sevier  v.  Holliday,  1  Hemp.  160. 

3  Glenn  v.  Harrison,  2  Harr.  1 ;  Dietus  ^  Schley  v.  Lyon,  6  Geo.  530. 
V.  Fuss,  8  Md.  148. 


CH.    VI.]  ACTION   ON   THE   CASE,    INCLUDING   TROVER.  337 

proceeded,  with  a  "  and  whereas  also,"  to  state  another  note,  its 
loss  and  finding  in  like  manner,  and  a  conversion  of  both  notes. 
The  defendant,  treating  it  as  containing  two  distinct  counts,  de- 
murred to  the  first.  Held,  the  declaration  was  to  be  deemed  as 
containing  a  single  count,  and  was  good  ;  and  the  words  "  whereas 
also  "  might  be  treated  as  surplusage.^ 

§  24.  Where  the  only  cause  of  action  alleged  is  one  accruing 
by  the  unlawful  conversion  of  the  property  when  the  plaintiff 
owned  it;  the  plaintiff  cannot  avail  himself,  at  the  trial,  of  a  con- 
version by  the  defendant  when  another  person  was  owner,  and 
before  sale  of  the  property,  by  such  owner,  to  the  plaintiff.^ 

§  24  a.  If  the  complaint  admits,  that,  before  the  plaintiff  became 
entitled  to  possession  of  the  property,  it  had  been  seized  under  an 
attachment  issued  at  the  suit  of  the  defendant,  under  the  laws  of 
another  State,  but  does  not  show  nor  aver  that  the  attachment  was 
void,  either  absolutely  or  as  against  the  plaintiff;  the  defendant 
was,  upon  the  face  of  the  complaint,  justified  in  refusing  to  de- 
liver possession  on  the  demand  of  the  plaintiff,  and  the  complaint 
will  be  held  bad  on  demurrer.^ 

§  25.  In  trover, "  it  is  not  usual  to  plead  any  other  plea  than 
the  general  issue,  not  guilty,  except  the  plea  of  the  Statute  of 
Limitations  and  a  release."'*  The  gist  of  the  action  being  the 
conversion,  any  special  plea,  that  the  defendant  did  not  convert 
the  property,  as  against  the  right  of  the  plaintiff  to  the  posses- 
sion, <tc.,  amounts  to  the  general  issue,  and  is  bad  on  demurrer.^ 
Under  the  general  issue,  in  trover,  the  defendant  may  show  a 
taking  of  the  animal  in  question  as  a  distress,  damage  feasant.^ 

§  26.  A  complaint  alleged  that,  on  or  about  the  31st  day  of 
May,  1851,  the  complainant  was  possessed,  as  of  his  own  property, 
of  a  gold  watch  of  the  value  of  $125,  and  lent  it  to  the  defend- 
ant for  four  days,  he  promising  that  within  said  time  it  should  be 
returned ;  that  the  defendant  knew  that  the  watch  was  the  prop- 
erty of  the  plaintiff,  but,  fraudulently  intending  to  defraud  him, 
had  not  delivered  it  to  the  plaintiff,  but  had  converted  it  to  his 
own  use.  Answer,  that  "  he  is  not  informed  and  cannot  state 
whether  the  plaintiff,  on  or  about,  <fec.,  was  possessed,  as  of  his 
own  propert}',"  of  a  gold  watch ;  and  a  specific  denial  that  "  on 

1  Oaklcv  V.  West,  1  Sanilf.  96.  «  Per  Bell,  C.  J.,  Drew  v.  Spaulding, 

-  Bownian  v.  Katon,  24  Barb  528.  45  N.  H.  478. 

Fairbanks  v.  Bloomfield,  2  Duer,  349.         »  Turner  v.  Waldo,  40  Vt.  51. 

6  45  N.  H.  472. 
22 


338  PLEADING.  [book   III. 

or  about  tlie  31st  day  of  May  the  plaintiff  did  leave  said  watch  as 
aforesaid  with  the  defendant  for  any  period,  with  the  promise  of 
the  defendant  to  return  it."  Also,  that  the  plaintiff  sold  the  watch 
to  the  defendant,  and  denial  of  all  unlawful  conversion  thereof. 
The  plaintilf,  in  re))ly,  denied  that  he  ever  sold  the  watch  to  the 
defendant.  Held,  the  allegation,  in  the  complaint,  that  the  watch 
\vas  lent,  was  material  and  issuable ;  that  the  denial,  that  the 
plaintiff,  ''  on  or  about  the  31st  day  of  May,"  &c.,  was  bad  in 
form,  being  a  negative  pregnant,  but  the  answer  negatived  the 
lending,  and  put  that  fact  in  issue,  and,  as  no  objection  was  made 
to  the  informality,  that  was  waived ;  that  the  allegation  in  the 
answer,  that  the  defendant  "  was  not  informed  and  could  not 
state,"  &c.,  was  not  warranted  by  the  (N.  Y.)  Code ;  that  the 
averment,  in  the  answer,  of  a  sale  of  the  watch,  was  not  a  denial 
of  the  bailment,  it  not  appearing,  from  the  pleadings,  that  the 
sale  was  not  subsequent  to  the  bailment ;  and  that  a  denial  of 
all  "  unlawful  conversion,"  was  not  a  denial  that  the  defendant 
actually  converted  the  property  to  his  own  use.^ 

§  27.  In  trover,  the  defendants  pleaded  that  A,  being  lawfully 
possessed,  lost  the  goods,  which  came  into  the  hands  of  B,  and 
the  defendants,  as  servants  of  A,  took  them  from  B.  Held,  that, 
under  a  replication  de  injuria,  the  plaintiff  might  set  up  a  con- 
veyance from  A  to  the  parties  under  whom  he  claimed.- 

§  28.  In  trover  by  assignees  for  four  hundred  bales  of  cotton, 
the  defendant  pleaded,  as  to  the  converting  of  three  hundred  and 
four  bales,  parcel  of  the  cottons  in  the  declaration  mentioned, 
that  they  were  purchased  by  one  A,  as  agent  for  the  bankrupts, 
and  paid  for  by  him,  and  shipped  for  and  on  account  of  the  bank- 
rupts, and  that,  they  becoming  insolvent,  and  the  cottons  coming 
to  the  hands  of  the  defendant  as  owner  of  the  vessel,  A  stopped 
them  in  transitu.  To  this  plea  the  plaintiffs  new-assigned,  that 
they  issued  their  writ  and  declared  thereupon,  not  for  the  sup- 
posed conversion  in  that  plea  mentioned,  but  for  that  the  defend- 
ant converted  and  disposed  to  his  own  use  divers  bales  of  cotton, 
"  different  to  and  other  than  the  said  bales  of  cotton  in  the  intro- 
ductory part  of  that  plea  mentioned  ;  "  and  also  for  that  the 
defendant  converted  and  disposed  of  the  last-mentioned  bales  of 
cotton  "  on  other  and  different  occasions  and  times,  and  for  other 

I  Elton  V.  Markliam,  20  Barb.  343.  ^  Eyre  v.  Scovell,  5  Com.  B.  702. 


CH.   VI.]  ACTION   ON    THE    CASE,   INCLUDING   TROVER.  339 

and  different  purpose,  and  in  anotlier  and  different  manner  than 
in  the  said  plea  mentioned."  Plea,  not  guilty.  Held,  however 
objectionable  in  form,  the  new  assignment  in  substance  alleged 
another  and  different  conversion  of  the  same  subject-matter  as 
that  mentioned  in  the  plea ;  and,  a  verdict  having  passed  for  the 
defendant,  upon  the  assumption  that  the  plaintiffs  were  bound  to 
prove  a  conversion  of  cottons  other  than  those  mentioned  in  the 
plea,  the  court  directed  a  new  trial. ^ 

1  Brancker  v.  Molyneux,   1  Scott,  N.  563. 


340  PLEADING.  [book   III. 


CHAPTER    VII. 

PLEADING    IN    ACTIONS    FOR    INJURIES    TO    THE    PERSON.  —  FALSE    IM- 
PRISONMENT. 

1.  General  remark.  tinction  between  this  action  and  the  action 

2.  False  imprisonment;   declaration;  dis-    for  malicious  prosecution. 

5  a.  Subsequent  pleadings. 

§  1.  Having  now  completed  our  view  of  the  general  rules  of 
pleading,  and  of  pleading  in  the  general  forms  of  action  ex  de- 
licto ;  we  proceed  to  a  consideration  of  the  same  subject,  in  con- 
nection with  some  of  the  principal  wrongs  to  person,  character, 
and  property.  A  portion  of  these  wrongs  it  has  been  necessary 
to  treat,  in  illustration  of  the  principles  which  apply  to  forms  of 
action.  Thus  pleading  in  the  action  on  the  case  involves  the 
subject  of  nuisance ;  and,  in  trover,  that  of  conversion.  And 
with  regard  to  the  injury  of  assault  and  battery,  the  technical 
identity  of  the  remedy  —  trespass  vi  et  armis  —  with  that  for 
forcible  and  immediate  injuries  to  property,  seemed  to  recommend 
a  consecutive  statement  of  the  rules  of  pleading  in  trespass  in  all 
its  several  branches,  of  quare  clausum,  de  bonis  asportatis,  and 
assault  and  battery. 

§  2.  In  pursuance  of  the  arrangement  heretofore  adopted,  we 
proceed  to  a  consideration  of  injuries  to  the  person,  exclusive  of 
assault  and  battery. 

§  3.  We  have  heretofore  adverted  to  the  points  of  resemblance 
and  of  difference  between  false  imprisonment,  including  wrongs 
to  the  person,  and  malicious  prosecution,  classed  with  wrongs  to 
character,  [a]  The  following  cases  further  illustrate  this  connec- 
tion. 

(a)  The  form  of  complaint  given  in  the  that  the  arrest  was  made  under  process, 

(Ala.)   Code,  p.   554,  for  false  imprison-  and  that  the  prosecution  was  ended  and 

ment,  is  in  trespass,  not  in  case.    To  make  determined.     Holly  v.  Carson,    39  Ala. 

it  an   action   on  the  case  for  malicious  345. 
prosecution,  the  complaint  should   aver 


CH.    VII.]  INJURIES   TO   THE    PERSON,   ETC.  341 

§  3  a.  The  defendant  appeared  before  a  justice,  and  on  affidavit 
charged  the  plaintiff  with  having  taken  or  stolen  a  breast-chain, 
and  procured  the  justice  to  issue  a  warrant  against  him,  and  ma- 
liciously, (fee,  caused  him  to  be  arrested  and  imprisoned  twelve 
hours.  Held,  good  ground  for  an  action  of  trespass,  though  not  for 
malicious  prosecution.  "  The  affidavit,  being  in  the  disjunctive, 
'  taken  or  stolen,'  charges  no  criminal  offence,  and  this  being  the 
case,  the  justice  had  no  right  to  issue  the  warrant ;  it  was  void 
process ;  void  on  its  face,  because  it  recites  the  defective  affida- 
vit .  .  .  and  all  who  were  directly  engaged  in  its  procurement  or 
execution  were  trespassers."  ^  So  a  count  that  the  defendant 
caused  the  plaintiff  to  be  arrested  and  imprisoned  without  reason- 
able or  probable  cause,  on  a  false  and  malicious  charge  of  felony, 
is  a  count  in  trespass  for  an  assault  and  false  imprisonment,  and 
not  an  informal  count  for  a  malicious  prosecution;  and  therefore 
requires  no  evidence  of  malice,  or  want  of  reasonable  and  prob- 
able cause.-  So  in  an  action  for  maliciously  and  witiiout  probable 
cause  going  before  a  magistrate,  and  procuring  the  plaintiff  to  be 
held  to  bail  to  keep  the  peace,  it  is  not  necessary,  as  in  an  action 
for  malicious  prosecution,  to  aver  that  the  proceeding  was  deter- 
mined in  favor  of  the  plaintiff,  it  being  ex  parte,  and  the  truth  of 
the  statement  made  by  the  applicant  to  the  magistrate  not  being 
controvertible.^  So  a  declaration  alleged,  that  the  defendants 
(the  one.  A,  acting  as  attorney  for  B,  the  other)  recovered  a  judg- 
ment against  the  plaintiff  for  30^.  7s.  4cZ.,  that  the  plaintifi"  paid 
and  satisfied  to  B  the  debt  recovered,  except  \bs.  Sd.,  and  that 
they  sued  out  a  ca.  sa.  upon  the  judgment,  and  wrongfully  and 
maliciously,  and  without  any  reasonable  or  probable  cause,  in- 
dorsed the  writ  with  directions  to  levy  5/.  14s.  8c?.  and  interest 
and  11.  Is.  for  the  costs  of  execution ;  that  the  plaintiff  tendered 
and  offered  to  pay  to  the  defendants  31.  Ss.,  which  was  sufficient 
to  pay  and  discharge  all  that  was  recoverable  against  the  plaintiff 
upon  the  judgment  and  writ,  together  with  the  costs  of  the  writ 
of  execution,  and  all  other  legal  and  incidental  expenses ;  and 
that  they  wrongfully  and  maliciously,  and  without  any  reasonable 
or  probable  cause,  procured  the  sheriff  to  arrest  the  plaintiff,  and 
detain  him  until  he  paid  11.  6s.  del.,  whereas  the  sum  of  3^.  8s., 

1  Steele  v.  Williams,  18  Ind.  161.  3  Steward  v.  Gromett,  7  C.  B.  (N.  S.) 

2  Brandt  v.  Craddock,   27  L.  J.  Exch.     191 ;  6  Jur.  (N.  S.)  776. 
315;  3  Hurl.  &  N.  «J58. 


342  PLEADING.  [book   III. 

and  no  more,  was  due,  &c.  Held,  the  declaration  disclosed  a  good 
cause  of  action,  and  without  alleging  that  the  plaintiff  had  ob- 
tained his  discharge  by  order  of  the  court,  or  a  judge,  so  as  to 
show  that  the  proceedings  had  terminated  in  his  favor. ^ 

§  4.  An  action  for  abduction  and  false  imprisonment  is  not 
maintained  by  proof  that  the  defendant,  by  misrepresentations, 
threats  of  a  criminal  prosecution,  and  payment  of  money  for  ex- 
penses, but  without  using  or  threatening  force,  induced  the  plain- 
tiff to  go  to  another  place  and  remain  in  concealment  for  a  time. 
"  It  is  at  most  a  case  where  she  yielded  voluntarily  to  the  defend- 
ant's misrepresentations  and  threats  .  .  .  and  absented  herself 
from  court  and  from  her  home  for  a  time."  ^ 

§  5.  In  an  action  for  maliciously  and  without  reasonable  or 
probable  cause  causing  the  plaintiff  to  be  arrested,  under  a  ca.  sa. 
issued  upon  a  judgment  obtained  by  the  defendant  against  him, 
and  upon  which  the  defendant  maliciously  and  without  reason- 
able or  probable  cause  indorsed  a  direction  to  levy  the  whole 
amount  recovered  by  the  judgment,  whereas  a  portion  of  that 
amount  had  been  previouly  satisfied ;  the  declaration  alleged,  as 
damage,  that  the  plaintiff  was,  after  he  was  taken,  during  his  de- 
tention, and  before  his  discharge,  able  and  willing  and  offered  to 
pay,  and  always  afterwards  during  his  detention  was  willing  to 
pay,  and  was  finally  discharged  from  imprisonment  upon  paying 
the  smaller  sum ;  and  that  the  plaintiff,  by  reason  of  the  prem- 
ises, was  necessarily  put  to  and  incurred  divers  costs  and  expenses 
in  and  about  obtaining  his  discharge.  Held,  the  declaration  suffi- 
ciently showed  special  damage,  inasmuch  as  the  plaintiff  must 
show,  not  merely  that  he  was  arrested  and  kept  in  custody  for  a 
greater  amount  than  was  due,  however  improperly  indorsed,  but 
also  that,  by  reason  thereof,  his  imprisonment  was  prolonged,  or 
the  expense  of  obtaining  his  discharge  increased.-^ 

§  5  a.  In  trespass  for  assault,  battery,  and  false  imprisonment, 
on  a  certain  day,  the  defendant  cannot  plead  the  suing  out  of  a 
warrant  against  the  plaintiff  on  a  preceding  day  in  justification, 
without  traversing  a  trespass  on  any  other  day  before  or  after.* 

§  6.  The  defendant,  under  tlie  plea  of  "  not  guilty,"  may  give 
in  evidence  the  excuse,  if  it  merely  goes  in  mitigation  of  damages, 

1  Gilding  v.  Eyre,  10  C.  B.  (N.  S.)  592.  3  Jennings  v.  Florence,  2  C.  B.  (N.  S.) 

■■^  Payson  v.  Macomber,  3  Allen,  59  ;    467. 
per  Chapman,  J.,  ib.  73.  i  Halliday  v.  Noble,  1  Barb.  137. 


CH.    VII.]  INJURIES   TO   THE    PERSON,   ETC.  343 

but  not  if  it  amounts  to  a  justification.^  In  an  action  of  tres- 
pass vi  et  armis  ap^ainst  a  magistrate,  not  so  styl<3(l  in  the  dec- 
laration, for  false  imprisonment;  a  justification  must  be  pleaded.^ 
But  where  the  declaration  avers  that  the  arrest  was  made  without 
aflSdavit  or  warrant,  the  defendant  may  prove  the  contrary,  tliough 
he  has  not  pleaded  it  in  justification.^ 

§  6  a.  In  trespass  for  an  assault  and  battery  and  false  imprison- 
ment, a  plea,  that  the  defendant  made  oath  before  a  justice  of  the 
peace  that  he  had  been  threatened  by  the  plaintiff",  <fec.,  and  prayed 
surety  of  the  peace,  and  the  justice  thereupon  issued  his  war- 
rants, &c.  ;  amounts  to  the  general  issue.^ 

§  6  6.  In  an  action  for  making  an  arrest  without  warrant,  a  plea 
of  suspicion  of  felony  must  state  the  grounds  of  suspicion.'' 

§  7.  To  an  action  for  arresting  the  plaintiff  on  two  writs  for  the 
same  cause  of  action,  the  answer  does  not  set  up  inconsistent  de- 
fences, within  Mass.  St.  1852,  c.  312,  §  20,  by  denying  the  alle- 
gations of  the  declaration,  and  averring  that,  if  the  plaintiff"  was 
arrested  on  two  writs,  as  alleged,  he  was  rightfully  arrested, 
because  the  first  action  was  discontinued  by  reason  of  his  repre- 
sentations, and  notice  given  him  of  the  discontinuance  before 
commencement  of  the  second  action.  "Here  is  no  denial,  and 
then  confession  and  avoidance  ;  the  facts  stated  in  the  answer  tend 
to  show  that  there  never  existed  a  cause  of  action,  because  there 
was  no  false  or  illegal  imprisonment  or  detention.  The  defend- 
ant does  not  say,  'you  were  illegally  arrested,  but  you  have  dis- 
charged or  released  the  cause  of  action;'  but  he  says,  '  under  the 
facts,  the  arrests  were  not  illegal,  and  the  plaintiff"  had  no  cause 
of  action.' "  ^  But  if  the  defendant  by  special  plea  set  up  legal 
process  in  justification,  and  then  aver  that  he  did  not  arrest  the 
plaintiff",  but  that  he  voluntarily  gave  bail ;  the  plea  is  bad  for 
duplicity.'^ 

§  8.  To  a  complaint,  that  the  defendant  without  any  justifiable 
cause  caused  the  plaintiff  to  be  arrested  and  detained  and  im})ris- 
oned  until  the  enforced  payment  of  a  sum  of  money,  it  is  a  good 
answer,  under  the  New  York  Code,  if  in  proper  form,  that  the 

1  Linforrl  v.  Lake,  3  Hurl.  &  Nor.  27G.  »  Wade  v.  Cliaffee,  8  R.  I.  224. 

See  5  llarring.  462.  6  Jewett  v.  Locke,  6  Gray,  233  ;  per 

2  Bailey  v.  Wiapms,  5  Harring.  4r)2.        Thomas,  J.,  ib.  2;i5. 

'  Boynton  v.  Tidwell,  I'J  Te.x.  \\H.  '  Stanton  y.  Seymour,  5  McLean,  2G7. 

*  Crookshank    v.    Kellogg,   8  Blackf. 
256. 


344  PLEADING.  [book   III. 

plaintiff  was  brought  before  the  defendant,  then  mayor  of  New- 
York,  duly  elected  and  qualified,  and  acting  as  such  mayor, 
charged  with  a  violation  of  a  certain  ordinance  of  the  city  ; 
further  alleging  an  examination  into  and  determination  of  the 
charge;  the  making  of  a  record  of  the  proceedings  and  judgment, 
the  issuing  of  process  pursuant  to,  and  to  carry  the  decision  into 
effect;  that  the  offence  was  within  the  jurisdiction  of  the  defend- 
ant as  mayor,  and  that  he  acted  throughout  as  such  and  in  good 
faith,  and  in  the  discharge  of  his  duty  as  mayor,  and  by  virtue  of 
certain  acts  and  ordinances  to  which  the  answer  refers.^ 

§  9.  Suit  for  false  imprisonment.  Answer,  that  the  defendant, 
acting  as  city  marshal,  arrested  the  plaintiff,  on  view,  for  intoxi- 
cation and  noise  in  the  streets  on  Sunday,  in  violation  of  the  city 
ordinances,  whereof  three  were  set  out,  (1.)  fixing  a  fine  for  intox- 
ication ;  (2.)  against  improper  noise ;  (3.)  authorizing  the  mar- 
shal to  arrest  and  conduct  before  the  mayor's  court  persons  found 
guilty  of  breach  of  city  ordinances.  The  mayor's  court  not  being 
in  session  on  Sunday,  the  defendant  kept  the  plaintiff  in  custody 
five  hours,  then  released  him  on  promise  of  his  appearance  in 
court  the  next  day,  when  he  did  appear  and  was  fined  for  drunk- 
enness. Held,  that  no  statute  made  drunkenness  a  crime  or  mis- 
demeanor, and,  though  the  city  might  recover  a  forfeiture  or 
penalty  in  a  suit  at  law,  yet  this  did  not  authorize  the  imprisoning 
of  a  man  for  an  uncertain  time,  by  a  ministerial  officer,  of  his  own 
volition;  the  duty  of  such  officer  being  to  take  the  prisoner  forth- 
with before  a  tribunal  having  jurisdiction,  and  then  prefer  a  com- 
plaint against  him.     The  answer  was  held  bad  on  demurrer.^ 

§  9  a.  A  replication  to  a  plea  of  justification  under  legal  process, 
that  the  plaintiff  was  detained  in  prison  until  he  paid  other  money 
than  that  for  which  the  process  issued,  or  submitted  to  other  con- 
ditions against  his  will,  is  a  good  answer  to  the  plea.  Such  a 
replication  is  not  a  departure,  since,  if  true,  it  supports  the  dec- 
laration.3 

§  10.  In  connection  with  the  action  for  false  imprisonment,  it 
has  been  recently  held,  that  an  action  will  lie  in  England  for  a 
tort  committed  abroad,  if,  by  the  law  of  the  foreign  place,  a  com- 
pensation or  damages  could  be  recovered.     And  that,  in  a  transi- 

1  Willis  V.  Havemeyer,  5  Duer,  447.  3  Breck  v.  Blanchard,  2  Fost.  303. 

2  Low  V.  Evans,  16  Ind.  486. 


CH.    VII.]  INJURIES   TO    THE    PERSON,    ETC.  345 

tory  action,  a  plea  in  abatement  of  an  action  pending  in  a  foreign 
court  is  bad. 

§  11.  To  a  declaration  for  trespass  and  false  imprisonment,  the 
defendant  pleaded  (except  as  to  the  imprisonment), that  the  tres- 
passes were  committed  at  Naples,  where  the  plaintiff  and  the 
defendant  were  then  resident,  and  that,  at  the  instance  of  the 
plaintiff,  proceedings  were  there  taken  before  a  correctional  judge 
sitting  according  to  the  articles  of  the  penal  procedure  laws  of 
that  country,  and  having  jurisdiction  ;  and  that,  by  the  laws  there 
in  force,  the  defendant  was  not  liable  to  be  sued  by  the  plaintiff 
in  any  civil  action  or  other  proceedings  to  recover  damages  for 
the  said  trespasses,  nor  liable  to  any  other  proceedings  except 
those  taken,  and  which  were  still  pending.  Held,  this  plea  did 
not  negative  that  the  proceedings  taken  were  proceedings  in 
which  a  compensation  or  damages  might  be  recovered,  and  was 
therefore  bad.  So  a  plea,  that,  by  the  laws  of  Naples,  until  the 
defendant  has  been  criminally  condemned  for  the  matter  com- 
plained of,  no  action  can  be  maintained  against  him  for  damages, 
and  that  he  has  not  been  so  condemned,  is  bad,  as  setting  up  a 
matter  of  procedure  which  is  to  be  governed  by  the  lex  fori? 

§  12.  In  trespass  for  breaking  and  entering  the  plaintiff's  house 
and  taking  his  goods,  the  defendant  justified  under  a  fi.  fa.  and 
warrant  of  execution  against  the  goods  of  one  A,  which  warrant 
was  delivered  to  the  defendant,  a  bailiff,  to  be  executed.  The 
plaintiff  replied  de  injuria,  admitting  tlie  writ,  the  warrant,  and 
its  delivery  to  the  bailiff.  Held,  the  existence  of  a  warrant  was 
admitted  by  the  replication,  and  the  defendant  was  not  bound  to 
prove  \i? 

§  13.  In  trespass  for  assault  and  false  imprisonment,  the  defend- 
ant justified  under  an  order  made  by  the  judge  of  the  sheriff's 
court  of  London,  for  committing  the  plaintiff  for  non-payment  of 
an  amount  recovered  against  him  in  that  court,  and  ordered  to  be 
paid  by  instalments.  Tiie  plea  first  stated  the  various  proceed- 
ings in  the  cause  and  court,  necessary  to  give  jurisdiction,  except 
that  it  did  not  allege  that  the  plaintiff  had  been  summoned  to 
show  cause  against  the  order  of  commitment ;  but  it  stated  that 
the  judge  duly  and  according  to  the  form  of  the  statute  made  the 

1  Scott  V.  Seymour,  8  Jur.  (N.  S.)  568 ;  2  Hewitt  v.  Macquire,  7  Eng.  L.  &  Eq. 
1  Hurl.  &  C.  219.  671. 


346  PLEADING.  [book  III. 

order.  The  replication  averred,  that  the  judge  did  not  order 
the  plaintiff  to  be  committed  in  the  manner  and  form  as  alleged 
in  the  plea.  Held,  this  traverse  only  put  in  issue  the  fact  of  the 
order,  and  not  its  validity,  or  the  question  whether  the  plaintiff 
had  been  duly  summoned.  ''  Supposing  that  the  traverse  was  in 
the  formal  terms,  that  the  order  was  not  made  duly  and  according 
to  the  form  of  the  statute,  we  do  not  think  that  such  a  replication 
would  be  considered  as  including  a  denial  that  the  plaintiff  was 
duly  summoned  and  neglected  to  appear.  ...  It  is  clear  on  such 
an  issue  as  this,  where  divers  facts  essential  to  the  validity  of  the 
order  are  stated,  and  an  opportunity  to  traverse  each  is  afforded, 
that  the  denial  of  the  order  does  not  involve  the  denial  of  any  one 
of  those  facts ;  as,  for  instance,  where  it  is  averred  that  one  was 
Beised  in  fee  and  demised,  the  iplea.  of  non  demisit  does  not  involve 
the  question  of  the  seisin  in  fee."  ^ 

1  Buchanan  v.  Kinning,  7  Eng.  L.  &  Eq.  455 ;  per  Parke,  B.,  ib.  460. 


CH.    VIII.]  LIBEL,  SLANDER,   ETC.  847 


CHAPTER  VIII. 

PLEADING     IN    ACTIONS    FOR    LIBEL     AND    SLANDER,    AND    MALICIOUS 

PROSECUTION. 

1.  General  remark.  28.  Miscellaneous  points  as  to  the  declara- 

2.  Declarsition.  tioii. 
12.  Counts.                                                                31.  Variance. 

18.  Joinder  of  slander  and  malicious  pros-         36.  Misceilaneon.s  points  of  practice. 

ecution.  39.  Pleading    subsequent   to   the   declara- 

19.  Innuendo.  tion. 

24.  Colloquium.  53.  Malicious  prosecution. 

27.   Words  in  a  foreign  language. 

§  1.  There  is  no  action,  in  which  the  niceties  of  pleading  have 
been  more  frequently  or  more  strictly  applied,  than  that  for  libel 
and  slander.  The  pleadings  accordingly  constitute  so  essential 
and  inseparable  a  part  of  the  general  subject,  that  they  have 
been  much  more  extensively  considered,  in  connection  with  the 
wrong  itself,  than  those  relating  to  any  other  injury.  (See  Hil- 
liard  on  Torts,  Ch.  XV.)  The  present  work,  however,  would  be 
quite  incomplete,  without  a  further  and  more  separate  view  of 
this  particular  part  of  the  law  relating  to  a  topic  so  important 
and  extensive. 

§  2.  In  an  action  for  words  imputing  an  offence  criminal  by 
statute  only,  the  statute  need  not  be  referred  to.^ 

§  3.  Under  the  Mass.  St.  of  1852,  c.  312,  a  declaration  in 
slander  must  set  forth  substantially  the  words  spoken.^ 

§  4.  In  an  action  by  husband  and  wife  for  slander,  imputing 
incontinency  to  the  wife,  the  declaration  alleged,  that  by  reason 
thereof  the  wife  became  ill  and  unable  to  attend  to  her  necessary 
affairs  and  business,  and  that  the  husband  was  put  to  expense  in 
endeavoring  to  cure  her.  Held,  on  demurrer,  the  declaration 
showed  no  cause  of  action.^ 

§  5.  In  an  action  of  slander,  for  charging  the  plaintiff  with 
incest,  the  words  alleged  were  to  the  effect  that  the  plaintiff  had 

1  Elam  V.  Badger,  23  111.  498.  »  Allsop  v.  Allsop,  5  Hurl.  &  Nor.  634. 

2  Lee  V.  Kane,  6  Gray,  ■i'Jd. 


348  PLEADING.  [book    III. 

carnal  intercourse  witli  his  daughter,  but  without  alleging  that  he 
had  any  knowledge  of  the  relationship.     Held,  demurrable.^ 

§  6.  A  declaration  is  demurrable  under  Mass.  Gen.  Sts.  c.  129, 
§§  2,  11,  12,  as  containing  superfluous,  impertinent,  and  scandal- 
ous allegations,  which,  in  averring  that  the  defendant,  while 
arguing  as  a  counsellor  at  law  a  case  to  the  jury  in  which  the 
plaintiff  was  a  party,  imputed  insanity  to  the  plaintiff,  states  in 
detail  numerous  occupations  of  the  plaintiff,  with  an  advertise- 
ment annexed  of  his  actions  and  discourses ;  the  occupation  of 
the  defendant ;  the  political  creed  of  both  parties ;  and  the  fact 
that  in  several  public  orations  the  plaintiff  has  denounced  the 
creed  of  the  political  party  to  which  the  defendant  belongs  as 
traitorous,  and  thereby  made  that  party  enemies  of  the  plaintiff.^ 

§  7.  If  the  complaint  states  that  the  publication  was  a  libel,  it 
is  unnecessary  to  aver  that  it  is  false  and  malicious.^  So,  when 
words  spoken  are  actionable  per  se,  malice  is  implied,  and  no 
express  averment  of  it  is  required  ;  but,  if  spoken  in  the  exercise 
of  some  public  or  private  duty,  or  of  some  right,  express  malice 
must  be  proved.'* 

§  8.  In  an  action  for  libel,  an  averment  that  the  defendant  is 
proprietor  of  the  paper,  and  that  the  libellous  matter  was  pub- 
lished in  his  paper,  is  a  sufficient  averment  of  a  publication  by 
him.^ 

§  9.  A  declaration  in  slander,  that  "  the  defendant  publicly, 
falsely,  and  maliciously  accused  the  plaintiff  of  the  crime  of  lar- 
ceny, in  words  substantially  as  follows:  '  He  is  a  thief,'"  is  bad, 
for  not  showing  that  the  words  were  spoken  of  the  plaintiff.^ 
But  where  a  declaration  for  libel  does  not  sufficiently  aver  the 
application  of  the  libel  to  the  plaintiff,  the  defect  is  caused  by  an 
admission  of  such  application  in  the  answer.'^ 

§  10.  Words  relied  on  as  actionable,  because  spoken  of  the 
plaintiff  in  his  profession,  must  be  expressly  alleged  by  proper 
averments  of  inducement  and  colloquium  to  have  been  so  spoken 
of  him.^  So  an  action  does  not  lie  for  the  charge  of  insolvency, 
without  an  averment  that  it  was  made  concerning  the  plaintiff's 

1  Griggs  V.  Vickroy,  12  Ind.  549.  M  E.  D.  Smith,  647. 

2  "  Joiiniies  "  V.  Burt,  6  Allen,  236.  6  Baldwin  v.  Hildreth,  14  Gray,  221. 

3  Hunt  V.  Bennett,  19  N.  Y.  (5  Smith)  7  Whittemore  v.  Ware,  101  Mass.  352, 
173.  8  Carroll  v.  White,  83  Barb.  615. 

*  Weaver  v.  Hendrick,  30  Mis.  502. 


CH.    VIII.]  LIBEL,    SLANDER,  ETC.  849 

trade  or  business,  and  was  false. ^  But,  in  an  action  for  slander, 
the  declaration  was  amended,  by  inserting  an  allegation,  that  the 
words  were  spoken  of  the  plaintiff  in  his  character  as  an  auc- 
tioneer, and  that  he  had  had  a  transaction  with  a  third  party,  in 
the  way  of  his  business  as  an  auctioneer,  to  wliich  the  words  might 
apply.     Held,  sufficient  to  support  the  allegation.^ 

§  11.  In  an  action  for  libel,  imputing  to  the  plaintiff  that  he  was 
a  "  truckmaster,"  there  being  no  innuendo  to  explain  the  mean- 
ing of  the  word ;  held,  although  the  word  was  not  to  be  found  in 
any  English  dictionary,  yet,  as  it  was  composed  of  two  well-known 
English  words,  the  plaintiff  was  not  bound  to  give  evidence  of  its 
meaning,  nor  the  judge  to  explain  it  to  the  jury ;  but  that  it  was 
properly  left  to  them  to  say,  whether,  under  all  the  circumstances, 
it  was  used  in  a  defamatory  sense.^ 

§  12.  A  new  count  for  another  slander  cannot  be  added,  where 
the  action  therefor  is  barred  by  the  Statute  of  Limitations."* 

§  13.  The  first  two  counts  of  a  declaration  alleged  a  slander,  in 
regard  to  the  sale  of  intoxicating  liquor  by  the  plaintiff;  and  the 
other,  slanderous  words,  imputing  adultery,  <fec.  The  declaration 
contained  no  allegation  of  special  damages,  as  resulting  from  the 
words  charged  in  the  first  and  second  counts;  but,  at  the  close  of 
the  declaration,  there  was  an  allegation  of  general  damages,  re- 
sulting from  ''  the  aforesaid  grievances  "  and  "  by  reason  of  the 
premises  ;  "  and  also  an  allegation,  that  the  plaintiff  had  been 
subjected  to  a  prosecution  for  violation  of  the  law  prohibiting  the 
sale  of  intoxicating  liquor.  Held,  on  general  demurrer,  the  dam- 
age occasioned  by  such  prosecution  was  not  such  a  natural  and 
immediate  consequence  of  the  slander,  alleged  in  the  first  and 
second  counts,  as  would  justify  the  court  in  referring  it  to  those 
counts.^ 

§  14.  When  a  declaration  contains  several  counts,  each  setting 
forth  a  distinct  and  separate  slander ;  each  must  be  perfect  in 
itself,  and  the  omission  of  a  material  statement  in  one  cannot  be 
supplied  by  reference  therein  to  another.  The  absence  of  a 
coZ/o^Miwm,  showing  by  extrinsic  matter  that  the  words  are  action- 
able, is  not  supplied  by  an  innuendo  attributing  to  those  words 
an  actionable  meaning.^ 

1  Tfedway  v.  Gray,  31  Verm.  292.  *  Smith  v.  Smith,  45  Tenn.  403. 

-  Kamsdale  v.  Greenacre,  1  F.  &  F.  6L  5  Holton  v.  Muzzy,  30  Verm.  3G5. 

3  Homer  v.  Taunton,  5  Hurl.  &  Nor.  ^  n,_ 
661. 


350  PLEADING.  [book   III. 

§  15.  It  is  allowable  to  include  in  the  same  declaration  divers 
distinct  words  of  slander,  of  different  import.^ 

§  16.  So,  in  a  single  count,  words  spoken  at  different  times,  and 
to  different  persons,  in  relation  to  the  same  subject.^ 

§  17.  Though  it  is  not  proper  to  join  in  the  same  counts,  as 
ground  of  recovery,  a  slander  and  a  libel,  yet,  when  the  latter  is 
matter  of  inducement  and  preliminary  to  the  former,  it  may  be 
set  forth  as  such.^ 

§  18.  A  cause  of  action  for  slander,  in  charging  the  plaintiff" 
with  theft,  may  be  united  with  one  for  a  malicious  prosecution  for 
theft,  both  being  for  "  injuries  to  character,"  within  clause  three 
of  §  80  of  the  (Ohio)  Code  of  Civil  Procedure.*  So  injuries  to 
character  by  simple  slander,  and  also  by  a  false  and  malicious 
charge  made  under  oath,  before  a  grand  jury,  whereby  several 
matters  of  special  damage  occurred,  which  the  complaint  sets 
forth,  but  not  alleging  want  of  probable  cause,  are  embraced  in 
the  4th  subdivision  of  §  167  of  the  N.  Y.  Code,  and  may  properly 
be  joined.^ 

§  19.  In  slander,  where  the  words  laid  are  not  jjer  se  defamatory 
in  their  ordinary  sense,  or  have  no  meaning  at  all  in  ordinary 
acceptation,  there  must  be  an  innuendo,  in  order  to  admit  evidence 
that  in  a  peculiar  sense  they  are  defamatory.^  The  office  of  an 
innuendo  is  to  explain  matter  already  expressed,  words  doubtful 
or  double  in  their  meaning,  or  which  do  not  of  themselves  show 
the  slander  intended.'^  It  cannot  enlarge  ambiguous  words,  not 
necessarily  of  themselves  importing  crime,  beyond  the  averment 
of  the  speaker's  intention.^ 

§  20.  The  innuendoes,"  meaning  to  insinuate  and  falsely  repre- 
sent," "  meaning  to  insinuate  and  be  understood,"  or  "  meaning 
and  intending  to  represent,"  "  that  the  plaintiff  had  stolen  the 
money  aforesaid,"  indicate  that  the  charge  against  the  plaintiff 
was  that  he  had  stolen  the  money,  and  are  therefore  sufficient.^ 

§  21.  Averment,  that  the  defendant,  intending  to  have  it  under- 
stood that  the  plaintiff  intended  to  produce  a  child,  and  pretend 
that  it  was  born  of  herself,  spoke,  &c.  Innuendo,  that  he  thereby 
intended  to  charge  the  plaintiff  with  "  attempting  "  to  produce  a 

1  Hall  V.  Nees,  27  111.  411.  6  Rawlings  v.  Norbury,  1  T.  &.  F.  341. 

2  Hoyt  V.  Smith,  32  Verm.  304.  '  Evans  v.  Tibbins,  2  Grant,  451, 

3  lb.  8  Weed  v.  Bibbins,  32  Barb.  315. 
*  Shore  v.  Smith,  15  Ohio  St.  173.  9  Hoyt  v.  Smith,  32  Verm.  304. 
5  Hull  V.  Vreeland,  42  Barb.  543. 


CH.    VIII.]  LIBEL,    SLANDER,   ETC.  351 

false  child,  &c.  Held,  the  words  must  be  taken  as  charging  the 
criminal  intent,  not  the  criminal  attempt,  they  being  such  as  to 
bear  that  construction.^ 

§  22.  Averments  were  introduced  into  the  declaration,  of  words 
imputing  dishonesty  to  L.,  "  meaning  the  plaintiff's  agent  and 
clerk  ;  "  but  there  was  nothing  else  showing  any  connection  be- 
tween L.  and  the  plaintiff.     Held,  insufficient. ^ 

§  23.  Words,  charging  that  the  plaintiff  and  one  A  were  caught 
together  in  the  packing-room,  no  special  damage  being  charged, 
are  not  actionable.  Otherwise,  if  with  an  innuendo  of  fornica- 
tion.3 

§  24.  As  we  have  seen,  an  innuendo  cannot  alter,  enlarge,  or 
extend  the  natural  and  obvious  meaning  of  the  words.  Where 
the  words  may  be  taken  in  a  double  sense,  the  innuendo  is  used 
to  attach  such  meaning  to  them  as  the  plaintiff  claims  was  intended, 
or  may  think  necessary  to  render  them  actionable.  And  if  in 
such  case  the  actionable  quality  of  the  words  arises  from  circum- 
stances extrinsic  of  them ;  averments  are  essential  to  show  of 
record  that  such  circumstances  existed,  and  connect  the  words 
with  the  circumstances.*  Where  the  actionable  quality  of  the 
words  depends  on  circumstances,  they  must  be  alleged  and  proved 
by  way  of  colloquium.^  (a) 

§  25.  It  is  held,  that  no  colloquium  or  innuendo  is  necessary  to 
explain  words  which  import  a  charge  of  fornication.*^  So  a  charge 
of  perjury  is  actionable  without  a  colloquium,  showing  that  it  was 
in  the  course  of  a  judicial  proceeding."  So  it  seems  that  words 
spoken  by  the  defendant  of  the  plaintiff  as  follows :  "  He  (the 
plaintiff)  acknowledged  that  he  swore  to  a  lie  about  the  money, 
and  had  taken  seventy-five  dollars  out  of  F.  more  than  he  ought 

1  Weed  V.  Bibbins,  32  Barb.  315.  5  Little  v.  Barlow,  20  Geo.  423. 

2  Smith  1-.  Hollister,  32  Verm.  695.  «  Elam  v.  Badger,  23  III.  498. 

3  Evans  v.  Tibbins,  2  Grant,  451.  7  Waggstafl' i;.  Ashton,  1  liar.  503. 

4  Gosling  V.   Morgan,   32  Penn.  273. 
See  Stancell  v.  Pryor,  25  Geo.  40. 

(a)  In  New  York,  wbere  the  words  are  act,  the  declaration  need   not  state  any 

ambiguous  in  themselves,  there  must  be  colloquium,  but  may  set  out  the  words 

innuendos  even  under  the  Code.     But  ex-  complained  of,  and  put  any  construction 

trinsic  facts,  which  are  the  inducement,  upon    them  by  innuendo.     Whether  the 

need    not  be  averred;  it  is  sutficient,  in  words  were  spoken  with  such  meaning  is 

their  jUace,  that  the  speaking  be  averred  for  the   jury.     Ilemmings  v.  Gasson,  Kl. 

to  be   of    the    plaintitl".     Van    Slyke    v.  Bl.  &  El".  310  ;  4  ,Iur.  (N.  S.)  834  ;  27  L.  J. 

Carpenter,  7  Wis.  173.  Q.   B.    252.      See   Barnett  v.   Allen,    3 

Under  §  10  of  the  15  &  16  Vict.  c.  76.  Hurl.  &  Nor.  376. 
and  forms  32,  33  in  Schedule  (B.)  to  that 


352  PLEADING.  [book   III. 

to ;  he  acknowledged  to  me,  that  he  swore  falsely  in  the  trial 
with  F.,  and  that  he  swore  falsely  in  reference  to  the  money, 
and  that  he  never  let  F.  have  any  money  as  he  swore  he  did, 
and  that  he  must  go  to  State  prison  ; "  construed  all  together, 
are  actionable  in  themselves,  without  a  colloquium  to  show  that 
the}'^  were  uttered  with  reference  to  a  judicial  proceeding.^  But  in 
a  late  case  the  distinction  was  taken,  that,  on  demurrer,  the  fol- 
lowing words,  standing  by  themselves,  are  not  actionable:  "In 
my  opinion  the  bitters  that  A  fixed  for  B  were  the  cause  of  his 
death ; "  as  not  involving  a  charge  of  murder.  While  with  a  col- 
loquium as  to  the  profession  of  the  plaintiff  these  words  were 
held  slanderous :  "  The  bitters  that  Dr.  A  gave  to  B  caused  his 
death  ;  there  was  poison  enough  in  them  to  kill  ten  men."  ^ 

§  26.  When  the  statement  of  material  facts  in  the  colloquium  is 
defective  in  form,  the  defect  cannot  be  taken  advantage  of  by 
motion  in  arrest  of  judgment.  After  verdict,  the  court  will  sup- 
ply by  intendment  all  such  averments  as  may  fairly  and  reasona- 
bly be  presumed  to  have  been  proved,  and  which  the  general, 
though  defective,  allegations  of  the  declaration  embrace.  As 
where  the  action  was  for  words  imputing  perjury  on  a  certain  trial, 
and  the  words  were  connected  with  that  trial,  and  the  trial  de- 
scribed, only  by  way  of  argument  and  recital.  So,  although  the 
declaration  contained  no  direct  averment  that  the  plaintiff  was 
legally  sworn  as  a  witness,  but  only  that  the  words  were  "  uttered 
concerning  the  plaintiff,  and  his  testimony  given  as  a  witness  on  that 
trial ; "  as  the  court  would  construe  it,  that  the  testimony  was 
given  in  the  usual  manner,  under  oath.  So,  although  the  declar- 
ation did  not  directly  aver  that  the  defendant  charged  the  plain- 
tiff with  perjury,  when  the  words,  explained  by  the  colloquium, 
were  actionable,  and  the  innuendo  showed  that  they  were  uttered 
in  an  injurious  sense.  So  it  is  immaterial,  whether  the  words  are 
a  direct  averment  that  the  plaintiff  swore  falsely,  or  what  their 
form  is,  if  as  spoken  they  would  generally  be  understood,  in  their 
ordinary  and  natural  import,  to  convey  the  slanderous  idea  or 
meaning.^ 

§  26  a.  Under  Mass.  St.  1852,  c.  312,  the  objection  that  a 
declaration  in  slander,  which  sets  forth  a  general  charge  in  itself 
imputing  a  felony,  and  states  the  words  spoken,  is  insufficient,  by 

1  Cass  V.  Anderson,  33  Verm.  182.  3  Cass  v.  Anderson,  33  Verm.  182. 

'^  Jones  V.  Diver,  22  Ind.  184. 


CH.    VIII.]  LIBEL,   SLANDER,    ETC.  353 

reason  of  not  stating  tlie  circumstances  necessary  to  show  the 
sense  in  which  the  words  were  spoken,  must  be  taken  by  de- 
murrer.^ 

§  27.  Where  shanderous  words  are  uttered  in  a  foreign  language, 
the  declaration  should  aver  that  the  persons  iji  whose  presence 
they  were  spoken  understood  the  language.^  The  words  must  be 
set  out  in  the  original,  and  with  a  translation.  Even  under  the 
Indiana  Code,  to  allege  in  English  and  prove  the  speaking  in 
German,  is  a  variance.^  But,  after  verdict,  an  averment  of  the 
publication  of  a  libel  in  a  foreign  language,  to  the  injury,  t^'c,  is 
good  without  an  averment  that  the  language  was  understood  by 
the  person  to  whom  it  was  published.* 

§  28.  A  wife  who  has  left  her  husband  cannot  maintain  an 
action  in  her  own  name  for  slander,  though  he  refuse  or  neglect 
to  support  her  in  her  separation,  the  pleadings  showing  only  a 
causeless  desertion.^ 

§  29.  A  complaint  is  not  demurrable  upon  the  ground  of  privi- 
lege, unless  it  state  the  facts  which  constitute  such  privilege,  and 
which  the  defendant  would  be  bound  to  state  in  a  plea  of  privilege.^ 

§  30.  Slander  cannot  be  laid  with  a  continnando.'  But  on  a 
declaration,  in  which  the  words  are  alleged  to  have  been  uttered 
"on  the  1st  day  of  November,  1856,  and  on  divers  other  days 
and  times  before  the  purchase  of  the  plaintiff's  writ ;  "  the  plain- 
tiff may  prove  a  single  uttering  on  any  day  pi'ior  to  the  date  of 
the  writ.*^ 

§  31.  It  is  necessary,  in  actions  of  slander,  for  the  plaintiff  to 
prove  the  actual  words  alleged,  or  enough  of  them  to  sustain  the 
action,  and  it  will  not  be  sufficient  to  prove  other  words  of  similar 
meaning,  and  involving  the  same  charge.^ 

§  32.  The  distinctions  are  made  in  a  late  case,  that  the  sub- 
stance of  the  alleged  charge  must  be  proved  in  substantially  the 
same  words  laid  in  the  declaration,  (a)     Any  mere  variation,  in 

1  Clay  V.  Brigliam,  8  Gray,  101.  and  tlie  wife's  piaking  lier  abode  with  ins 

2  Amann  v.  Damna,  8  C.  B.  (N.  S.)  motlier  and  sisters,  by  Lowrie,  C.  J.  lb. 
597;  7  ,hir.  (N.  S.)  47.  404). 

•*  Kersclibaugiier  v.    Slusser,    12  Ind.  ''  Perkins  r.  Mitcliell,   31   Barb.  461  ; 

463.  Little  i-.  Barlow,  20  Geo.  428. 

*  Kiene  v.  Ruff,  1  Clarke  (Iowa),  482.         ^  Swinney  v.  Kane,  22  Ind.  178. 

5  Smith  V.  Smith,  4;')  Penn.  40:!;  (con-  »  Kiue  v.  Cottrel,  5  H.  I   34(t. 

taining   some  caustic    remarks  as  to  the  "  M'CJonnell  v.  M'Kenna,  10  Ir.  Com. 

rights  and  duties   of  husband  and  wife,  Law,  511. 

(a)  Adeclaration  in  the  form  prescribed  fendant  charged  tlie  plaintiff  with  a  certain 
by  Mass.  St.  1852,  c.  312,  that    the  de-     crime,  "  by  words  spoken  of  the  ])laintilf 

23 


354  PLEADING.  [book   III. 

the  ft)rm  of  expression  only,  is  not  material,  but  the  words 
alleged  cannot  be  proved  by  showing  that  the  defendant  ex- 
pressed the  same  meaning  in  dijfferent  words.  It  is  not  necessary, 
however,  to  prove  all  the  words,  unless  the  identity  of  the  charge 
depends  upon  them.^ 

§  33.  The  action  cannot  be  sustained,  where  the  declaration  is 
affirmative,  and  the  proof  interrogative :  ^  nor  where  it  is  alleged 
that  the  words  were  spoken  in  the  presence  and  hearing  of  "  divers 
citizens  of  the  commonwealth  ; "  if  they  were  spoken  before  only 
one  person,  not  a  citizen.^  Nor  if  the  declaration  allege,  that 
the  defendant  charged  the  plaintiff  with  a  crime,  and  the  proof  is, 
merely  that  he  said  he  supposed  the  plaintiff  to  be  guilty  of  such 
crime  ;  ^  nor  upon  a  count,  that  the  defendant  charged  upon  the 
plaintiff  an  act  of  fornication,  witnessed  by  A,  and  proof  of 
charging  an  act  witnessed  by  B,  or  words  implying  a  charge 
of  habitual  fornication  and  lewdness  with  A ;  nor  a  count,  that 
the  defendant  charged  the  plaintiff,  who  was  an  unmarried 
woman,  with  having  had  a  child,  and  proof  of  words  express- 
ing the  opinion,  that  at  the  time  of  speaking  them  she  was  preg- 
nant.5 

§  34.  As  in  case  of  slander,  if  a  portion  of  the  article  claimed 
to  be  libellous  is  omitted  in  the  declaration,  but  the  substance  of 
the  charge  remains  the  same,  it  is  no  variance.^  So  a  variance  of 
one  day  between  the  date  of  the  libel  as  set  forth,  and  the  date  as 
shown  in  evidence,  is  held  immaterial,  if  the  defendant  be  not 
thereby  misled."  So  an  alleged  discrepancy,  between  the  title  of 
a  paper  offered  in  evidence  and  the  title  alleged,  was  held  not  to 
require  its  rejection.^  And  where  the  words  charged  were,  "  the 
girl  that  hired  with  us,"  &c,,  and  those  proved,  "  the  girl  that 
lived  with  us,"  &c. ;    held,  not  a  material  variance.^ 

§  35.  An  instruction  in  an  action  of  slander,  hypothecated 
upon  the  belief  of  the  jury,  "  that  the  slanderous  words  set  forth 

1  Smith  r.  Hollister,  32  Verm.  55.  6  Smart  v.  Blanchard,  42  N.  H.  137. 

'^  Kiiit;  V.  Whitley,  7  -Jones,  529.  ^  Tiirall  v.  Smiley,  9  Cal.  529. 

3  Chatin  v.  White,  102  Mass.  1.39.  «  State  v.  Jeandel,  5  Harring.  475. 

*  Dickey  v.  Andros,  32  Verm.  5-5.  9  Robinet  v.  Ruby,  13  Md.  95. 
5  Paysou  V.  Macomber,  3  Allen,  69. 

substantially  as  follows,"  is  supported  by  The  plaintiflf  need  only  prove  enough  of 

proof,  that  the  defendant  spoke  words  sub-  the  words  set  out  to  establish  the  charge, 

stantiall^',  though  not  precisely,  like  those  unless  the  omission  to  prove  a  portion  of 

set  out.     Baldwin  v.  Soule,  G  Gray,  321.  them  changes  the  import  of  the  charge. 

Variance  may  be  waived  by  agreement.  Harbison  v.  Shook,  41  III.  142. 


CH.    VIII.]  LIBEL,    SLANDKR,    ETC.  355 

in  the  petition,  or  any  part  of  them,"  wore  spoken,  but  which  fails 
to  inform  the  jury  what  words  set  out  in  the  petition  were  slan- 
derous and  actionable,  is  misleading,  especially  if  the  petition 
contain  expressions  charged  to  have  been  spoken  which  are  not 
slanderous.^ 

§  36.  It  is  held  in  a  late  case,  that  the  court  has  a  general  juris- 
diction, applicable  to  every  species  of  action,  to  order  a  plaintiff 
to  furnish  the  defendant  with  further  particulars,  if  the  circum- 
stances of  the  case  and  the  course  of  justice  require  it.  There- 
fore where,  in  an  action  for  slander,  the  defendant  moved  the 
court  to  order  the  plaintiff  to  furnish  '*  the  names,  descriptions, 
and  addresses  of  the  persons  in  whose  presence  the  slanderous 
words  were  spoken,  and  the  time  or  times  when,  and  the  place  or 
places  where,  the  words  were  spoken ;  "  held,  that  the  plaintiff 
should  furnish  a  statement  of  the  occasion  or  occasions  on  which 
the  words  were  spoken,  though  not  of  the  names,  descriptions, 
and  addresses  of  persons  present.^ 

§  37.  In  an  action  for  libel,  where  the  allegation  is  merely  that 
the  defendant  is  proprietor  of  the  certain  newspaper,  without 
alleging  that  he  published  it,  and  this  is  proved  without  objection 
on  the  trial,  according  to  the  New  York  Code,  §  171;  the  objec- 
tion cannot  prevail  on  appeal.^ 

§  38.  A  motion  in  arrest  of  judgment  will  not  He,  where,  the 
declaration  being  examined  in  connection  with  the  whole  record, 
though  imperfect  in  itself,  the  imperfection  is  supplied  by  an 
admission  in  the  plea.* 

§  39.  With  reference  to  the  pleadings  in  the  action  for  libel  or 
slander,  subsequent  to  the  declaration  ;  many  and  various  changes 
have  been  introduced  by  the  statutory  law  of  the  dillerent  States, 
and  the  recent  cases,  founded  in  part  upon  the  statutes,  are  not 
harmonious  or  reconcilable.^ 

§  40.  The  plea  of  the  general  issue  in  an  action  for  libel  admits 
the  falsehood  of  the  words.^  So  the  truth  of  the  words  spoken,  in 
an  action  for  slander,  cannot  be  proved  under  the  general  issue ;' 
nor  any  circumstances  to  disprove  malice,  or  mitigate  the  dam- 

1  Lettoii  r.  Younir,  2  Met.  (Ky.)  558.  *  Iloyt  r.  Smitli,  82  Verm.  304. 

-  Earlv  i:    Smith,    12  Ir.   Com.  Law,  ^  See  Hagan  r.  Hendry,  18  Iiid.  177. 

App.  XXXV.  Q.  B.  6  Thomas  v.  Danawav,  30  111.  373. 

»  Hunt  V.  Bennett,  19  N.  Y.  (5  Smith)  ^  Kinney  v.  Uosea,  3'Har.  397. 
173. 


356  PLEADING.  [book   III. 

ages,  if  they  terid  to  establish  the  truth  ;  ^  (a)  though  the  defendant 
expressly  admit  the  words  to  be  false.^ 

§  41.  In  slander,  the  defendant,  under  the  general  issue,  may 
show,  as  evidence  of  accord  and  satisfaction,  that  the  plaintiff 
agreed  to  waive  the  action  in  consideration  of  the  defendant's 
destroying  certain  papers,  which  he  did.^ 

§  42.  With  reference  to  the  plea  of  justification,*  although 
the  strict  rules  of  pleading  have  been  much  relaxed  by  statutory 
provisions,  it  is  held,  in  New  York,  that  the  Code  has  only  abol- 
ished those  rules  of  pleading  which  are  technical  and  formal; 
those  which  have  their  foundation  in  reason  and  good  sense,  and 
lend  an  important  aid  in  the  investigation  of  truth,  retain  all  their 
original  force  and  authority.  An  answer  is  insufficient,  in  the 
sense  of  the  Code,  not  only  when  it  sets  up  a  defence  groundless 
in  law,  but  when,  in  the  mode  of  stating  a  defence,  otherwise 
valid,  it  violates  the  essential  rules  of  pleading.  Of  the  rules  of 
pleading,  none  is  better  established  tlian  that  a  defamatory  charge, 
made  in  general  terms,  can  only  be  justified  by  a  specification,  on 
which  the  defendant  relies  to  establish  its  truth.^  And  in  a  late 
case  it  is  held,  that  a  justification  cannot  be  set  up  under  an 
answer  which  raerel}^  denies  the  allegations  of  the  complaint,  and 
alleges  tliat  the  words  charged  are  true.  Under  the  Code,  as 
before,  a  justification  must  state  the  facts  which  establish  it,  with 
the  time,  place,  and  circumstances.  Thus,  in  an  action  for  the 
charge  of  false  swearing,  the  answer  must  state  the  evidence,  and 
what  the  plaintiff  swore  to.  "  It  should  present,  substantially,  an 
indictment  against  the  plaintiff,  for  the  alleged  perjury."^  And  in 
another  recent  case  it  is  held,  that  the  law  as  to  the  pleading  of  a 
justification  remains  under  the  Code.  The  provision,  that  new  mat- 
ter in  an  answer  must  be  in  ordinary  and  concise  language,  with- 
out repetition,  does  not  authorize  a  mere  repetition  of  the  libellous 
words   and   an  averment  of  their  truth,  without  any  fact  to  show 

1  Parke  v.  Blackiston,  3  Har.  373.  George  v.  Lemon,  19  Tex.  150 ;  Thomas 

2  Waffgstaff  V.  Ashton,  1  Har.  503.  v.  Diinaway,  30  111.  387. 

3  Lane  v.  Applegate,  1  Stark.  R.  97.  ^  Fry  v.  Bennett,  5  Sandf.  54. 

*  See  Bryan   v.    Gurr,   27   Geo.  378  ;  *>  Tilson  v.  Clark,  45  Barb.   178  ;  per 

Miller,  J.,  ib.  181. 

(a)  In  Indiana,  circumstances  of  mitiga-  And  the  rule  is  held  applicable  to  no 

tion  maybe  set  forth  in  the  answer,  though  other  action,  except  for  libel  and  slander, 

not  required  to  be.     Swinney  v.  Nane,  22  Smith  v.  Lisher,  23  Ind.  500. 
lud.  178. 


CH.    VIII.]  LIBEL,    SLANDER,    ETC.  357 

it.  And  the  same  construction  is  to  be  given  to  the  section  of  the 
Code,  which  allows  at  the  same  time  a  justification  and  ciicum- 
stances  in  mitigation.  And  the  plaintiff  may  object  to  the  intro- 
duction of  evidence  under  an  answer  thus  defective,  though  he 
might  also  have  compelled  an  amendment  by  motion.^ 

§  42  a.  Wliere  the  only  plea  justifies  the  words  as  true,  the 
affirmative  of  the  issue  being  on  the  defendant,  he  has  the  right 
to  open  and  reply  in  evidence  and  argument.- 

§  43.  Not  guilty  and  a  justification  may  be  jcjintly  pleaded.^ 
In  Massachusetts,  a  denial  of  having  spoken  the  words  cliarged, 
and  an  averment  of  their  truth,  are  consistent  defences,  and  may 
be  separately  stated  in  the  same  answer.*  But  to  a  declaration 
containing  three  counts  for  three  distinct  libels,  the  court  re- 
fused to  allow  the  defendant  to  plead  one  general  plea  of  justi- 
fication.^ 

§  44.  The  plaintiff  alleged  that,  he  having  advertised  his  goods 
for  sale  by  auction,  the  defendant  published  a  libel,  whereby, 
after  reciting  the  advertising  and  that  the  plaintiff  unlawfully- 
detained  goods  of  the  defendant,  and  which,  as  the  defendant  was 
informed,  the  plaintiff  intended  to  dispose  of,  the  defendant  gave 
notice  that  the  goods  were  his  absolute  property,  and  did  forbid 
the  purchase  of  them  ;  by  means  whereof  the  sale  failed  alto- 
gether. Plea,  that  the  plaintiff  did  unlawfully  detain,  &c.,  that 
the  defendant  w^as  informed  and  believed,  &c.,  and  therefore  the 
defendant  published  the  said  words  for  the  purpose  of  warning  all 
persons  from  purchasing  the  goods  so  unlawfully  detained.  Held 
good,  on  demurrer,  as  amounting  to  the  general  issue.  Also,  by 
one  Justice,  as  showing  the  truth  of  the  statements.^ 

§  45.  Declaration,  that  the  plaintiff  was  cashier  to  A,  and  the 

defendant,  in  a  letter  to  A,  falsely,  &c.,  the  words,  '•  I  conceive 

there  is  nothing  too  base  for  him  to  be  guilty  of."     Justification, 

that  the  plaintiff  signed  and  delivered  to  the  defendant  an  I.  0.  U., 

and  afterwards,  on  having  sight  thereof,  falsely  and  fraudulently 

asserted  that  the  signature  was  not  his,  and  that  the  libel  was 

written  and   published   solely   in   reference  to  this   transaction. 

Held,  the  libel  must  be  interpreted  by  the   subject-matter,  and 

the  justification  was  sufficient." 

1  Wacliter    v.   Quenzer,   29  N.  Y.  (2  *  Payson  v.  Macnmber.  3  Allen,  69. 

Tiffa.)  547  ;  Sorrell  v.  Crai}r,  15  Ala.  789.  ^  Honess  v.  Stubl)S,  7  C.  IJ.  (N.  tS.)  555. 

'i  Mosos  V.  Gatewood,  5  Rich.  234.  «  Carr  i-.  Diickett,  5  Hurl.  &  Nor.  783. 

3  Smith  V.  Smith,  39  Penn.  441.  1  Tighe  v.  Cooper,  7  EU.  &  B.  639. 


358  PLEADING.  [book   III. 

§  46.  The  defendant  is  bound  to  make  out  the  defence  which 
he  lias  chosen.  Thus  where,  in  an  action  for  charging  false 
swearing,  the  defendant  by  his  plea  has  based  his  defence  on  the 
fact  that  the  plaintiff  was  guilty  of  perjury ;  he  will  be  required 
to  prove  the  perjury. ^  (a)  So  a  justification  must  be  an  answer 
to  the  exact  charge.  Thus  words  charging  the  plaintiff  with 
having  begotten  a  bastard  child,  and  thereby  having  committed 
adultery  with  the  child's  mother,  are  not  answered  by  a  pie 
alleging  adulterous  intercourse  with  the  mother.^  So  where  a 
plea  justified  words  which  charged  the  sale  of  intoxicating  liquor 
contrary  to  law,  bj'  setting  forth  several  distinct  sales;  held  not 
sufficient,  on  general  demurrer,  because  it  did  not  allege  that 
such  sales  were  contrary  to  the  laws  of  the  State.'^ 

§  47.  In  an  action  for  libel ;  that  the  publication  is  not  a  libel, 
is  a  good  plea.^  So  it  is  a  good  defence,  under  the  plea  of  not 
guilty,  that  the  publication  consists  of  a  fair,  correct,  and  impar- 
tial report  of  a  trial  in  a  court  of  justice.^ 

§  48.  Where  the  charge  is  not  matter  indictable,  a  plea  of 
justification  may  be  allowed,  in  a  general  form,  the  defendant  ren- 
dering particulars  of  the  charges  intended  to  be  justified.^ 

§  49.  If  a  plea  may  justify  a  part  only  of  distinct  charges,  it 
will  at  all  events  be  bad  on  general  demurrer,  if,  where  the  libel- 
lous matter  is  all  charged  in  one  count,  it  do  not  deny  or  justify 
the  whole  or  all  the  charges  which  it  professes  to  cover."  And 
where,  in  an  action  for  libel,  the  defendant  had  charged  the  plain- 
tiff with  having  on  a  certain  occasion  acted  from  motives  of  spite 
and  lucre,  and  pleaded  a  justification,  which  failed  as  to  the  latter 
feature  of  the  charge ;  held,  the  libel  being  entire,  the  defendant 
was  not  entitled  to  a  verdict  on  the  plea  as  it  stood,  or  as  to  any 
part  of  it.^ 

§  50.  The  court  refused  leave  to  plead,  to  a  declaration  contain- 
ing three  counts  for  separate  libels,  a  general  plea  of  justification, 
that  the  libels  in  the  several  counts  were  true.^ 

1  Hicks  V.  Eesing,  24  III.  566.  6  Behrens  v.  Allen,  8  Jur.  (N.  S.)  118. 

2  Holton  V.  Muzzey,  30  Verm.  365.  '  Ames  v.  Hazard,  6  R.  I.  335. 

3  lb.  8  Cory  v.  Bond,  2  F.  &  F.  241. 

*  Nixon  V.  Harvey,  8  Ir.  Com.  Law,  9  Honesst-.  Stubbs,  7  C.  B.  (N.  S.)  555, 

446,  Exch.  6  Jur.  (N.  S.)  682 ;  29  L.  J.,  C.  P.  2-2.0. 

^  Lewis  V.  Levy,  4  Jur.  (N.  S.)  970; 
27  L.  J.  Qu.  B.  282. 

(a)  Underaplea  of  justification  wherein  only  necessary  to  aver  and  prove  that  the 

the   defendant  avers    that    the    plaintiff  plaintiff  had  sworn  falsely  to  establish  the 

wilfully  committed   perjury  in  a  certain  justification.     Harbison  v.  Shook,  41  111. 

Case,  he  must  prove  the  plea,  though  it  be  142. 


CH.    VIII.  MALICIOUS   PROSECUTION.  3o9 

§  51.  A  plea,  justif>M"ng  the  repetition  of  a  slander,  because  the 
plaintiii'  had  first  said  the  same  of  himself,  will  not  let  in  evidence 
tending  to  prove  the  charge.  Under  such  plea,  the  defendant  is 
confined  to  declarations  of  the  plaintiff  prior  to  the  slander.^ 

§  52.  If  there  be  evidence  of  express  maUce,  the  jury  may  give 
exemphuy  damages.  The  plea  of  justification  on  the  truth, 
wholly  unsupported,  is  evidence  of  express  malice.  But  this  plea 
is  held  not  necessarily  evidence  of  express  malice.  As  where  the 
defendant,  having  good  grounds  and  reasonable  cause  to  believe 
the  plaintiff  guilty,  on  evidence  creating  a  strong  presumption  of 
guilt,  pleads  a  justification  for  the  purpose  of  getting  tlie  circum- 
stances in  evidence,  and  not  for  the  purpose  of  repeating  the 
slander.^ 

§  53.  With  reference  to  the  action  for  malicious  prosecution^  a 
wrong  usually  classed  with  libel  and  slander,  as  done  to  character 
or  reputation ;  little  needs  to  be  added,  in  the  present  connection, 
to  wiiat  was  said  in  treating  of  the  injury  itself.  (See  Hilliard 
on  Torts,  Ch.  XVI.)  The  remedy  is  an  action  on  the  case,  the 
pleadings  in  which,  as  already  explained,  are  less  technical  than 
in  other  actions,  and  give  rise  to  comparatively  few  questions 
and  decisions. 

§  54.  It  is  held  that  a  variance,  between  the  day  alleged  in  the 
declaration  as  that  of  the  plaintiff's  acquittal,  and  the  day  of  trial 
mentioned  in  the  record  which  is  offered  in  evidence,  is  not  fatal, 
unless  the  day  is  alleged  by  way  of  description  of  the  record. 
Otherwise  with  a  misdescription  in  this  respect,  or  of  the  teste  or 
return  of  process.^ 

§  55.  Under  a  declaration  which  avers  the  wrongful  and  vexa- 
tious suing  out  of  an  attachment,  and  the  seizure  of  the  goods  of 
the  plaintiffs,  whereby  they  have  lost  the  advantage  and  benefit 
of  their  business  as  merchants,  been  forced  to  abandon  the  same, 
and  been  "  wiiolly  ruined  in  their  circumstances,"  <fec. ;  tlie 
plaintilfs  may  recover  the  actual  injury  done  to  the  goods  by 
their  seizure."* 

§  56.  Declaration,  that,  the  plaintiff  being  possessed  of  premises, 
the  defendant  and  S.  maliciously  contrived  to  get  possession  of  a 
portion  of  them,  and  to  set  up  illicit  stills  there;  and  thereupon, 

1  Kinnev  v.  Hosea,  3  Har.  397.  3  i  ciiit.  PI.  385. 

'^  Parke  v.  Blackiston,  3  Har.  373  *  DonnoU  v.  Jones,  17  Ala.  G89. 


360  PLEADING.  [book   III. 

in  pursuance  of  the  conspiracy,  they,  by  falsely  and  fraudulently 
representing  to  the  plaintiff  that  S.  required  such  portion  for 
making  ink,  induced  the  plaintiff  to  permit  S.  to  enter  thereon; 
and  thereupon  the  defendant  and  S.,  in  further  pursuance  of  the 
conspiracy,  entered  thereupon  and  set  up  illicit  stills;  and,  in 
further  pursuance  of  the  conspiracy,  maliciously  represented,  and 
made  it  appear  and  be  believed,  that  it  was  the  plaintiff  who  had 
so  set  up  the  stills ;  and  also  that,  in  further  pursuance  of  the 
conspiracy,  the  defendant  and  S.  manufactured  in  that  portion  of 
the  premises  excisable  articles,  contrary  to  tiie  statute;  and  then, 
in  further  pursuance,  &c.,  maliciously  represented,  and  made  it 
appear  and  be  believed,  that  it  was  the  plaintiff  who  manufactured 
such  articles,  and  that  he  was  knowingly  aiding  and  concurring 
in  the  manufacturing,  &c. ;  by  means  whereof  an  of3ficer  of  the 
excise  found  in  the  said  portion  of  the  premises  manufacturing, 
and  in  the  course  of  manufacturing,  divers  goods,  and  did  at  the 
same  time  discover  in  and  about  such  place  the  plaintiff,  who,  by 
reason  of  the  premises,  appeared  to  be  assisting  in  the  manufact- 
ure, &c.,  whereupon  the  officer  arrested  the  plaintiff,  and  the 
plaintiff  was  convicted  by  a  magistrate  in  the  penalty  of  30?. 
Held  bad,  as  neither  stating  a  good  cause  of  action  in  the  nature 
of  conspiracy,  nor  of  an  action  for  malicious  prosecution.^ 

§  57.  A  complaint  for  malicious  prosecution  alleged  that  the 
defendant, "  not  having  any  reasonable  or  probable  cause  of  action 
whatever  against  the  plaintiff  in  that  behalf,  to  have  a  writ  of 
arrest  against  him,  but  wrongfully  and  unjustly  contriving  and 
intending  to  oppress  and  injure  the  plaintiff,  falsely  and  mali- 
ciously caused  and  procured  to  be  sued  and  prosecuted  out  of  the 
Huntington  Circuit  Court  a  certain  writ  of  *'no  go,"  at  the  suit  of 
the  defendant  against  the  plaintiff,  directed  to  the  sheriff  of  Hunt- 
ington county,  whereby  he  was  commanded  to  arrest  the  plaintiff 
and  him  safely  keep,  so  that  he  might  have  his  body  before  said 
court  at  the  next  ensuing  term,  to  answer  said  defendant  in  a 
civil  action."  Held,  that  the  words  "no  go"  were  not  equivalent 
tone  exeat;  but  that  the  substance  of  a  writ  of  ?ie  exea^  was  stated, 
and  a  description  by  its  technical  name  was  therefore  unimpor- 
tant.2 

1  Barber  v.   Lesiter,  7  C.  B.   (N.  S.)  2  Ammerman  v.  Crosby,  26  Ind.  451. 

175;  tj  Jur.  (N.  S.)  654. 


CH.    VIII.  MALICIOUS   PROSECUTION.  361 

§  58.  In  an  action  for  damages  (aside  from  taxable  costs)  for 
commencing  a  suit  and  suftering  it  to  be  discontinued  by  non- 
attendance  of  the  Justice,  it  is  competent  to  show  in  defence, 
under  tlie  general  issue,  that  the  plaintiff  in  that  case  paid  the 
defendant  his  taxable  costs  immediately  after  such  discontinu- 
ance.^ 

»  Read  v.  Amidon,  40  Vt.  169. 


362  PLEADING.  [book   III. 


CHAPTER   IX. 

PLEADINGS   IN   ACTIONS   FOR   INJURIES    TO    PROPERTY. 

1.  General  remark  —  possession.  14.  Lights,  &c.;  common;  patent. 

4.  Watercourses  and  mills. 

§  1.  Following  the  order  of  topics  heretofore  adopted,  we  pro- 
ceed to  consider  the  pleadings  in  actions  for  injuries  to  property. 
Of  course  these  have  been  largely,  though  incidentally,  treated  in 
other  connections,  —  as  under  the  heads  of  trespass,  nuisance, 
negligence,  and  conversion,  —  and  comparatively  little  remains  to 
be  added  with  reference  to  the  particular  subjects  of  ownership 
or  possession. 

§  2.  A  plaintiff  cannot  recover  for  injuries  to  his  possession, 
when  the  complaint  negatives  such  possession.  The  remarks  of 
the  court  show  the  nature  of  the  case  and  grounds  of  decision. 
"There  is  no  averment  .  .  .  that  the  plaintiff  .  .  .  had  the  actual 
possession  of  the  land  ...  or  that  being  then  disseised,  he  had 
since  regained  the  possession.  .  .  .  Possession  .  .  .  would  suffi- 
ciently appear  from  an  allegation  of  title  .  .  .  for  if  the  land  is 
vacant  .  .  .  the  title  will  .  .  .  draw  after  it  the  possession.  .  .  . 
The  plaintiff  deprived  himself  of  this  effect  of  his  allegation  of 
title,  by  averments  .  .  .  showing  that  before  and  at  the  time  he 
acquired  title  the  land  was  in  the  actual  possession  of  the  defend- 
ant, and  has  so  remained  ever  since.  These  allegations  .  .  . 
cannot  be  rejected  as  surplusage ;  for  if  the  complaint  is  to  be 
regarded  as  in  ejectment,  they  or  some  of  them  are  necessary  to 
show  a  cause  of  action;  and  if,  as  in  trespass,  then  .  .  .  the 
plaintiff  shows  on  the  face  of  his  own  pleading  that  he  has  no 
cause  of  action."  ^ 

§  3.  We  have  heretofore  considered,  at  much  length,  the  subject 
o^  watercourses  and  mills?     (See  Hilliard  on  Torts,  Ch.  XX.) 

1  Cowenlioven  v.  Brooklyn,  38  Barb.  2  ggg  Tyler  v.  Mather,  9  Gray,  177. 

9  ;  per  Scrugham,  J.,  ib.  12. 


CH.    IX.]  INJURIES   TO    PROPERTY.  363 

§  3  a.  An  action  under  (Wis.)  Laws  of  1864,  c.  168  (Laws  of 
1861,  c.  60),  for  flowage,  may  be  dismissed  as  to  the  additional 
defendants,  even  after  answer,  if  the  complaint  does  not,  by 
amendment  or  otiierwise,  show  a  cause  of  action  against  them.^ 

§  4.  In  an  action  for  diverting  water  from  the  plaintilf's  mill, 
the  declaration  must  allege,  that  by  such  diversion  tiie  quantity 
of  water  wliich  continued  to  flow  to  the  mill  was  insufficient,  or 
that  the  plaintiff  was  thereby  injured.^ 

§  5.  It  is  no  ground  for  arresting  judgment,  in  an  action  for 
stopping  a  watercourse  and  thereby  flowing  the  plaintiff's  land, 
that  the  declaration,  which  alleges  tliat  the  plaintiff  was  seised 
and  possessed  of  a  certain  lot  of  land,  from  which  the  water  which 
fell  and  flowed  thereon  was  accustomed  to  flow  off  through  this 
watercourse  in  the  land  of  the  defendant,  does  not  more  particu- 
larly describe  the  plaintiff's  right.^ 

§  6.  Complaint,  that  the  defendants  built  dams,  &c.,  whereby 
they  kept  back  the  water,  and  also  opened  gates  whereby  mud 
washed  out  with  tlie  water,  and  filled  the  plaintiff's  ditches,  and 
rendered  the  water  worthless.  Held,  merely  two  ways  of  divert- 
ing the  water,  and  therefore  properly  set  out  in  the  same  count.* 

§  6  a.  A  navigation  company,  authorized  to  erect  dams,  let 
them  fall  into  disuse,  and  the  defendant  rebuilt  one,  the  backwater 
of  which,  the  plaintiff  alleged,  injured  his  premises.  The  plaintiff 
declared,  that  until  the  obstruction,  caused  by  rebuilding  the 
dam,  the  natural  flow  of  the  creek  was  along  his  premises.  Held, 
this  averment  did  not  exclude  the  presumption  of  nuisance  by 
reason  of  the  prior  dam  of  the  company  at  the  same  place.^ 

§  7.  The  remedy  for  an  obstruction  of  a  watercourse,  and  pre- 
venting the  water  from  flowing  to  the  land  of  an  owner  below,  as 
it  has  been  accustomed  to  flow,  by  erecting  a  dam,  and  closing 
the  gates  at  night  for  the  purpose  of  collecting  the  water,  is  by 
an  action  of  tort,  and  not  by  a  complaint  under  the  Massachusetts 
mill  acts.^ 

§  7  a.  Declaration,  that  a  pond,  on  which  land  in  possession  of 
the  plaintiff  bordered,  and  which  constituted  a  boundary  and  a 
watering-place,  had  been  greatly  lowered  by  the  deepening  of  a 
drain   by  B,  and  that  the  defendants   had  ever  since  wrongfully 

1  Smith  V.  Weape,  21  Wis.  440.  *  Gale  ;•.  Tuolumne,  &c.,  14  Cal.  25. 

2  Burden  v.  Mobile,  21  Ala.  80'J.  *  Jcssup  v.  Loucks,  55  Penn.  350. 

'  Ashley  v.  Ashley,  4  Gray,  l'J7.  *>  Thompson  v.  Moore,  2  Allen,  350. 


SG-i  PLEADING.  [BOOK   III. 

kept,  maintained,  and  continued  the  drain  so  deepened.  Held,  a 
sufficient  allegation  of  positive  wrongful  acts  of  the  defendants, 
by  which  the  drain  had  been  kept  open.^ 

§  7  6.  A  complained,  in  a  mandamus  against  the  trustees  of  a 
navigation,  that  there  were  sluices  near  his  land  under  their 
management ;  that,  owing  to  heavy  rains,  the  water  had  risen ; 
that  the  sluices  were  not  raised  to  such  a  height  to  let  off  the 
water  as  they  ought  to  have  been,  and,  but  for  possible  damage 
to  works  of  the  trustees  in  another  place,  would  have  been; 
whereby  he  suffered  damage ;  but  not  that  the  sluices  raised  the 
water  higher  than  it  would  have  risen  had  they  not  existed.  The 
issue  on  the  return  and  pleadings  was,  whether  the  damage  was 
occasioned  on  account  of  the  navigation.  Held,  the  allegations, 
though  they  might  have  been  insufficient  on  demurrer,  were,  after 
verdict,  sufficient  to  warrant  judgment  for  A.^ 

§  7  c.  In  an  action  brought  by  a  town  to  recover  damages  to  a 
highway,  occasioned  by  a  freshet,  the  question,  whether  the  injury 
was  caused  by  negligence  and  want  of  skill  in  the  defendants  in 
managing  their  dam-gate  and  the  culvert-gate  ffashboards  after 
the  freshet  commenced,  is  not  open,  under  the  allegations  in  the 
declaration,  that  the  injury  was  caused  by  the  unskilful  and  negli- 
gent construction  of  the  dam,  and  its  not  being  kept  in  proper 
repair.^ 

§  8.  Under  the  California  practice,  words  which  are  technical, 
but  not  important,  may  be  rejected  as  surplusage,  if  they  do  not 
lead  to  misapprehension  as  to  the  material  facts  of  the  case,  which 
are  otherwise  clearly  stated.  Thus,  in  a  suit  for  damages  oc- 
casioned by  the  overflow  of  water  from  the  defendant's  land, 
bringing  with  it  gravel,  stones,  &c.,  the  averment  of  "with  force 
and  arms  broke  and  entered "  is  immaterial,  and  need  not  be 
proved.^  So  where  the  complaint  alleges  that  the  defendant 
wrongfully  and  injuriously  diverted  water,  while  the  testimony 
shows  the  injury  to  be  the  result  of  the  act  of  another,  preventing 
its  return  to  its  channel,  as  designed  by  the  defendant,  after  its 
use;  this  is  no  variance.^  So,  A  and  B  being  owners  of  lands 
and  mills  on  opposite  sides  of  a  river,  which  mills  were  operated 

1  Smith  V.  Modus,  33  Conn.  460.  *  Darst  v.  Rush,  14  Cal.  81.     See  Pick- 

^  Lord  Delamere  v.  The  Queen,  Law  ett  v.  Condon,  18  Md.  412. 
Eep.  2  H.  L.  419.  5  Stein  v.  Burden,  29  Ala.  127. 

3  WendeU  v.  Pratt,  12  AUen,  464. 


en.    IX.]  INJURIES   TO    PROPERTY.  365 

by  the  waters  raised  by  a  dam  across  it^  A  brought  an  action  on 
the  case  against  B,  fur  unlawfully  raising  the  dam  on  his  side  of 
the  river,  in  such  a  manner  as  to  inundate  A's  wheel  and  mill ; 
alleging  that  he  was  entitled  to  the  free  course  of  the  waters,  and 
to  the  use  of  them  for  his  mill,  by  means  of  the  dam,  free  and 
undisturbed.  In  support  of  this  allegation,  A  gave  in  evidence 
an  indenture,  from  which  both  parties  derived  their  titles,  provid- 
ing, that,  when  there  should  be  water  enough  in  the  pond,  all  the 
mills  might  be  improved,  without  let  or  hindrance;  l)ut,  when 
there  should  be  want  of  water,  the  party  undei-  wlioui  J3  claimed 
should  have  the  solo  ])Ower  of  drawing  the  water  out  of  the  pond, 
for  his  mills,  three  whole  days  in  four,  and  the  party  under  whom 
A  claimed  should  have  the  like  power  one  day  in  four.  Held, 
there  was  no  fatal  variance ;  for  the  indenture  proved  the  right 
alleged,  either  for  the  whole  time,  or  for  one  day  in  four;  and,  in 
either  case,  A  was  entitled  to  recover  to  the  extent  of  the  injury 
proved.^  But  where,  in  an  action  for  diverting  water,  the  declara- 
tion alleged,  that  the  plaintiff  was  entitled  to  all  the  water  in  a 
dam  which  should  rise  above  a  certain  mark,  and  the  evidence 
showed  that  he  was  entitled  only  to  such  part  as  should  remain 
after  a  prior  use  by  the  defendant ;  held,  on  error,  a  i'atal  variance.^ 
So,  under  a  complaint  for  obstructing  a  stream,  and  causing  the 
water  to  flow  back  upon  and  over  land  of  the  plaintiff,  the  plain- 
tiff cannot  show  that  raising  the  stream  interfered  with  the  nat- 
ural drainage  of  the  land,  so  that  the  rain-water  did  not  soak  away, 
but  remained  until  it  dried  away.-^  So  a  declaration,  for  the  ob- 
struction of  "a  small  stream  of  water"  running  through  the 
plaintiff's  land,  is  not  sustained  by  evidence,  that  the  flow, 
through  a  ditch  of  water  which  has  accumulated  from  rains  or 
the  melting  of  snow,  or  the  undermining  of  the  land,  has  been 
obstructed.'^  So  a  declaration,  for  the  diversion  of  a  watercourse 
running  through  the  plaintiff's  cedar  swam]>,  by  digging  a  ditch 
from  the  channel  thereof,  above  the  swamp,  on  land  not  belonging 
to  the  plaintiff,  and  diverting  the  water  into  it,  and  thereby  injur- 
ing the  swamp  ;  is  not  sustained  by  proof,  that  the  defendant  dug 
a  ditch  which  diverted  the  water  from  flowing  in  an  ancient 
stream  into  a  large  swamp,  of  which  the  jilaintiff 's  land  was  a 
portion,  if  no  watercourse  of  the  plaintiff  is  thereby  disturbed; 

1  Bunlick  V.  Glasko,  18  Conn.  494.  3  Pixley  v.  Clark,  32  Barb.  268. 

''  Wilbur  V.  Brown,  3  Denio,  356.  *  Dickinson  v.  Worcester,  7  Allen,  19. 


366  PLEADING.  [book   III. 

altliougli  it  does  not  appear  that  the  defendant  had  authority  for 
his  acts.i 

§  9.  To  an  action  for  wrongfully  keeping  and  maintaining  a 
weir  at  a  height  beyond  its  ordinary  level,  whereby  the  plaintiff 's 
lands  were  flooded,  the  defendant  pleaded,  that  "  he  did  not  wrong- 
fully keep  and  maintain  the  weir  at  a  height  greater  than  its 
ordinary  level.*'  The  issue  followed  the  words  of  the  plea.  Held, 
the  plea  only  put  in  issue  the  maintenance  of  the  weir;  and  evi- 
dence on  behalf  of  the  defendant,  that  such  maintenance  was 
rightful,  was  inadmissible.^ 

§  9  a.  In  an  action  for  sedimentary  flowage,  an  answer,  denying 
the  allegations  that  the  plaintiff  owns  the  land  overflowed,  and 
that  the  defendant  "  wrongfully ''  caused  the  overflow,  but  not 
that  he  caused  it,  does  not  admit  that  he  caused  the  sediment  to 
flow  upon  the  plaintiff's  land;  it  puts  the  ownership  in  issue.^ 

§  10.  Under  an  answer  to  a  complaint  for  flowing  land,  which 
claims  the  right  to  maintain  the  dam  at  its  present  height,  without 
compensation,  the  burden  of  proof  is  on  the  respondent."* 

§  11.  In  an  action  for  diverting  a  stream,  by  cutting  ditches  on 
the  defendant's  lot  above  that  of  the  plaintiff;  the  defendant  can- 
not set  up,  by  way  of  equitable  defence,  a  parol  agreement  be- 
tween them  relative  to  the  deepening  of  the  channel  on  their 
respective  premises,  made  several  years  before,  and  having  no 
connection  with,  the  diversion.  Nor  could  such  an  agreement 
have  been  set  up  as  a  counter-claim  under  the  New  York  Code 
of  1852.  Nor  by  way  of  recoupment  of  damages.  Nor  could  the 
defendant  claim  damages  for  breach  of  the  agreement,  as  a  set-off, 
under  the  Revised  Statutes,  or  the  Code  prior  to  1852.^ 

§  12.  Under  a  canal  act,  mill-owners,  within  a  specified  distance 
of  the  canal,  were  entitled  to  use  the  water  for  the  purpose  of 
condensing  the  steam  used  for  working  their  engines.  In  an 
action  against  such  a  mill-owner,  the  declaration  charged,  that  he 
abstracted  more  water  than  was  sufficient  to  supply  the  engine 
with  cold  water  for  the  purpose  of  condensing  the  steam,  and  that 
he  applied  the  water  to  other  and  different  purposes  than  con- 
densing steam.  The  plea  alleged  an  user  by  the  defendant,  as 
occupier  of  the  mill,  of  the  water,  as  of  right  and  without  inter- 

1  Griffith  V.  Jenkins,  2  Allen,  589.  »  Wood  v.  Richardson,  35  Cal.  149. 

2  Blood  V.  Keller,  11  Ir.  Com.  Law  Rep.  *  Jackson  v.  HarrinEjton,  2  Allen,  242. 
132  Exch.                                                               5  Pattison  v.  Richards,  22  Barb.  143. 


CH.  IX.]  INJURIES  TO  PROPERTY.  367 

ruption  for  twenty  years,  for  other  purposes  than  condensing 
steam,  to  wit,  for  supplying  the  boiler  of  the  engine,  and  of  gen- 
erating steam  for  working  the  engine,  and  of  supplying  a  certain 
cistern,  to  wit,  a  cistern  on  the  roof  of  a  certain  engine-house. 
The  replication  traversed  such  user.  The  evidence  was,  that  the 
defendant  was  the  occupier  of  two  mills,  adjoining  to  each  other 
and  occupied  together,  each  having  a  separate  steam-engine. 
The  '*  old  mill  "  was  erected  in  1823,  since  which  time  the  defend- 
ant had  used  the  water  from  the  canal  for  twenty  years,  for  the 
purposes  mentioned  in  the  plea,  in  respect  of  the  '*  old  mill." 
The  *'  new  mill"  was  built  in  1829,  and  the  water  had  been  used, 
as  alleged  in  the  plea,  for  less  than  twenty  years  in  respect  of 
that  mill.  There  was  no  cistern  on  the  roof  of  any  engine-house, 
but  there  were  various  cisterns  in  and  about  the  engine-house  in 
the  old  mill,  through  which  the  water  passed.  The  jury  found 
that  the  two  buildings  formed  one  mill,  and  that  there  had  been  a 
twenty  years'  user  as  of  right  by  the  defendant.  Held,  the  issue 
was  divisible,  and  the  defendant  was  entitled  to  the  verdict,  ex- 
cept as  to  the  supplying  a  cistern  on  the  roof  of  the  engine-house, 
as  to  which  the  plaintiff  was  entitled  to  a  verdict,  with  nominal 
damages.  Held,  also  (upon  motion  for  judgment  non  obstante 
veredicto^,  that  the  plea  was  bad,  as  the  canal  company  had  no 
right  to  grant  the  water  for  other  purposes  than  for  condensing 
steam,  and  that  no  such  right  could  consequently  be  inferred  from 
a  twenty  years' user.  ''This  is  a  claim  by  the  defendant  to  im- 
pose a  servitude  on  the  canal,  by  the  effect  of  a  twenty  years' 
adverse  user.  .  .  .  Twenty  years'  adverse  user  will  not  establish 
such  aright  unless  the  owner  of  the  servient  tenement  is  capable 
of  giving  such  a  right  by  express  grant.  Now,  if  there  had  been 
such  a  grant  here,  .  .  .  the  plaintiffs,  who  are  trustees  for  public 
purposes,  would,  nevertheless,  have  a  right  to  the  flow  of  the 
water."  ^ 

§  13.  The  plaintiff  was  entitled,  for  the  purposes  of  his  mill,  to 
a  supply  of  water,  by  means  of  a  stream  running  through  and 
over  the  lands  of  the  defendant.  The  defendant,  in  working  the 
minerals  lying  under  the  bed  of  the  stream,  had  caused  a  subsi- 
dence of  the  bed,  to  the  extent  of  four  feet,  for  some  distance.  In 
order  to  maintain  the  original  level  of  the  stream,  the  defendant 

1  The  Eoclidale,  &c.  v.  Radcliffe,  12  Eng.  L.  &  Eq.  40'J ;  per  Erie,  J.,  ib.  418. 


368  PLEADING.  [book   III. 

had  constructed  embankments  on  either  side,  and  there  was  no 
actual  diminution  in  the  supply  of  water  to  the  mill.  Upon  a  bill 
for  an  injunction,  the  court  refused  to  make  a  hostile  decree 
against  the  defendant.  But,  by  reason  of  the  subsidence,  he  was 
required  to  give  an  undertaking,  not  to  work  the  mineral  in  such 
a  way  as  to  obstruct  or  interfere  with  the  flow  and  passage  of  the 
water  to  the  mill ;  staying  further  proceedings  ;  giving  no  costs ; 
but  reserving  liberty  to  the  plaintiff  to  apply,  if  occasion  should 
require.^ 

§  14.  With  reference  to  the  subject  of  lights  and  other  ease- 
ments;  in  an  action  for  injury  to  the  reversion  by  obstructing 
ancient  lights,  it  is  sufficient  for  the  declaration  to  show  an  ob- 
struction which  may  cause  such  injury,  especially  if  it  is  alleged  that 
by  means  thereof  the  plaintiff's  reversionary  estate  was  injured. 

§  15,  And  such  declaration  is  not  bad,  on  demurrer,  because 
the  obstruction  is  one  which  is  capable  of  being  shown,  at  the 
trial,  to  be  only  temporary,  and  not  injurious  to  the  reversion.^ 

§  16.  An  averment,  that  the  plaintiff  owned  a  dwelling-house, 
in  which  there  were  and  still  of  right  ought  to  be  four  ancient 
windows,  through  which  the  light  and  air  ought  to  have  entered, 
and  still  ought  to  enter  of  right,  allows  proof  of  a  prescriptive 
right,  of  one  founded  on  grant,  or  on  adverse  user."^ 

§  17.  Where  a  bill  stated,  that  the  erection  of  a  proposed  build- 
ing would  materially  affect  the  comfort  and  enjoyment,  in  respect 
of  light  and  air,  of  the  inhabitants  of  an  adjoining  house,  of  which 
there  had  been  uninterrupted  enjoyment  for  twenty  years  and 
upwards ;  the  court  granted  an  injunction  to  restrain  the  erection 
of  such  building,  the  plaintiff  undertaking  to  bring  an  action  within 
one  month.^ 

§  18.  To  an  action  for  obstructing  the  plaintiff's  lights,  and 
depriving  him  of  support  to  his  buildings,  the  defendant  pleaded 
an  equitable  plea ;  that  the  grievances  complained  of  were  occa- 
sioned by  his  pulling  down  a  house  and  erecting  another  in  its 
place,  which  he  did  with  the  acquiescence  and  consent  of  the 
plaintiff,  and  on  the  faith  of  such  acquiescence  and  consent  he 
incurred  expenses.  Replication,  that  the  plaintiff  acquiesced  and 
consented  on  the  faith  of  false  representations  of  the  defendant; 

1  Elwell  V.  Crovvther,  8  Jur.  (N.  S.)  »  Ward  v.  Neal,  35  Ala.  602. 

1004;  6  L.  T.  (N.  S.)  596.  *  Arcedeckne  v.  Kelk,  5  Jur.  (N.  S.) 

-'  Metropolitan,  &c.  v.  Fetch,   27   L.  J.  114  ;  7  W.  R.  194  ;  32  L.  T.  331. 
C.  P.  330;  5  C.  B.  (N.  S.)  504. 


CH.    IX.]  INJURIES   TO    PROPERTY.  369 

that  is,  tliat  the  grievances  complained  of  would  ikiI  rosnlt  from 
his  works.  Held,  the  plea  and  the  replication  were  respectively 
good.^ 

§  19.  Declaration,  that  the  defendants  wrongfully  raised,  made, 
and  formed,  and  caused  to  be  raised,  made,  and  formed,  a  certain 
embankment  of  earth  near  the  plaintiff's  house,  and  wrongfully 
continued  the  same,  <fec.,  by  reason  whereof,  &c.,  divers  large 
quantities  of  water  ran  and  flowed  to  and  into  the  said  house, 
whereby  the  same  became  greatly  injured,  wetted,  and  damaged. 
Plea,  that  the  said  embankment  was  I'aised,  under  and  by  virtue 
of  certain  acts  of  Parliament  granted  in  that  behalf,  to  wit,  <fec. 
Replication,  that  the  running  and  flowing  of  the  water  to  and 
into  the  plaintiff's  messuage,  as  in  the  declaration  mentioned,  was 
and  is  occasioned  by  the  wrongful  construction,  negligent  and 
improper  raising,  making,  and  forming  of  the  said  embankment, 
and  the  want  of  proper  and  sufficient  drains  to  the  same.  Held, 
by  Crompton  and  Mellor,  JJ.  (^duhitante  Cockburn,  C.  J.),  that 
the  replication  was  no  departure.^ 

§  20.  A  plea  of  right  of  common  for  "one  cow,  and  three-fourth 
parts  of  a  right  of  common  of  pasture  for  another  cow,"  with  an 
averment  "  that  one  L.  had  one-fourth  part  of  a  right  of  common 
of  pasture  for  one  cow,"  and  that  the  defendant  in  respect  of  his 
right  of  common  for  one  cow  and  three-fourth  parts  of  the  right 
of  common  for  another  cow  in  his  own  right,  and  in  respect  of 
one-fourth  part  of  a  right  of  common  as  the  servant  of  L.  put  two 
cows,  and  no  more,  on  the  common;  was  held  bad.''^ 

§  21.  In  an  action  for  the  infringement  of  a  jKitent,  the  court 
(since  the  Common-law  Piocedure  Act)  allowed  the  defendant  to 
plead,  first,  not  guilty  ;  secondly,  that  the  patentee  was  not  the 
inventor;  thirdly,  iion  concessit ;  fourthly,  that  the  invention  was 
not  a  manufacture  ;  fifthly,  that  the  invention  was  not  new ;  and, 
sixthly,  that  no  sufficient  specification  was  enrolled.^ 

§  22.  A  declaration,  by  the  assignee  of  a  patent  for  improve- 
ments in  machinery,  alleged  its  infringement,  by  making,  selling, 
and  counterfeiting  the  machines.  The  plea  averred,  that  the 
patentee  died  intestate  while  the  patent  was  vested  in  him  ;  that 

1  Davis    V.   Marshall,   7   Jiir.    (N.  S.)  3  Nichols  r.  Cliapman,  5  Hurl.  &  Nor. 

1247.  643. 

■^  Brine  v.  Great,  &c.,  8  Jur.   (N.  S.)  *  Piatt  v.  Else,  '20  Kiig.  L.  &  Eq.  304. 

410;  2B.  &  S.  402. 

24 


370  PLEADING.  [book    III. 

his  administrator  granted  by  deed  to  S.  &  A.,  and  to  such  persons 
as  they  should  from  time  to  time  license,  &c.,  in  that  behalf, 
exclusive  liberty  and  license  to  make,  use,  and  vend  the  inven- 
tion throughout  England  and  Wales,  Berwick-upon-Tweed,  Scot- 
land, and  Ireland  ;  that  S.  &  A.  granted  and  assigned  to  the 
defendant  the  said  exclusive  liberty  and  license ;  and  that  the 
alleged  infringement  was  an  exercise  of  that  liberty  and  license. 
A  replication,  on  equitable  grounds,  set  forth,  that,  by  a  certain 
other  deed  of  the  same  date  as  the  deed  of  license  to  S.  &  A.,  and 
made  between  the  administrator  of  the  one  part,  the  plaintiff  and 
five  other  persons  (naming  them)  of  the  second  part,  and  S.  &  A. 
of  the  third  part,  reciting  that,  by  arrangement  with  the  deceased 
patentee,  the  parties  thereto  of  the  second  part  were  entitled  to 
participate  in  the  profits  to  be  derived  from  the  patent;  and  that 
S.  &  A.  had  contracted  with  the  parties  of  the  first  and  second 
parts  for  the  absolute  purchase  of  a  license  for  the  exclusive  use 
of  the  invention,  and  it  had  been  agreed  that  the  said  contract 
should  be  carried  out  as  thereinafter  appeared,  and  that  the  cove- 
nants thereinafter  contained  should  be  entered  into ;  and  reciting 
that,  in  part  performance  of  the  said  contract,  the  deed  of  license 
to  S.  &  A.  (being  the  deed  in  the  plea  mentioned)  had  been  exe- 
cuted :  it  was  witnessed,  in  pursuance  of  the  said  contract,  that 
each  of  the  parties  thereto  thereby  covenanted  and  agreed  with 
the  others  of  them  that  S.  &  A.  should  not  manufacture  machines, 
under  or  by  virtue  of  the  said  license,  for  sale  out  of  Great  Bri- 
tain and  Ireland.  Of  all  which  the  defendant,  before  the  granting 
and  assignment  of  the  said  license  by  S.  &  A.  to  him,  had  notice. 
That  afterwards,  by  deed  dated  30th  October,  1852,  between  S. 
&  A.  of  the  first,  and  the  defendant  of  the  second  part,  reciting 
the  fac^s  above  stated,  and  that  S.  &  A.  had  contracted  with  the 
defendant  to  assign,  and  had,  by  a  deed  also  dated  80th  October, 
1852,  assigned  to  him  the  said  license:  it  was  witnessed  that  the 
defendant  covenanted  with  S.  &  A.,  inter  alia,  to  observe  and 
perform  the  covenant  by  them  in  the  previous  deed,  not  to  manu- 
facture machines,  under  or  by  virtue  of  the  license,  for  sale  out 
of  Great  Britain  and  Ireland  ;  and  to  indemnify  S.  &  A.  from  the 
consequences  of  the  non-observance  thereof.  There  was  an  aver- 
ment of  breaches  by  defendant  of  the  covenant  in  question,  by 
manufacturing  the  patented  machines  in  England  for  sale  out  of 
England,  and  by  the  sale  out  of  England  of  the  patented  machines 


CH.  IX.]  INJURIES  TO  PROPERTY.  371 

and  parts  tliercof.  Held,  on  demurrer,  that  the  replication  was 
bad ;  that  tlie  license  to  S.  &  A.  and  the  contemporaneous  deed 
were  not  to  be  read  as  one  deed,  and  that  therefore  the  absolute 
terms  of  the  former  were  not  qualified  by  the  covenants  in  the 
latter.  Also,  that,  although  in  equity  the  defendant  was  bound 
by  those  covenants,  a  court  of  common  law  could  not  do  complete 
equity  between  all  parties  in  the  matter,  having  no  jurisdiction 
to  bring  before  it  the  five  covenantees,  parties,  in  addition  to  the 
plaintiff,  to  the  said  contemporaneous  deed,  or  to  restrain  possil)le 
future  actions  by  them  against  the  defendant.^ 

1  Schlumberger  v.  Lister,  2  Ell.  &  E   870. 


372  PLEADING.  [book  III. 


CHAPTER  X. 

PLEADINGS  IN  ACTIONS    FOR   INJURIES   TO    RELATIVE  RIGHTS  ;    OFFICERS 

OF    THE    LAW. 

1.  Justices.  2.  Clerks.  3.  Sherifts,  &c. 

§  1.  Declaration  against  the  defendants,  as  justices  of  the 
peace,  that  the  plaintiffs  were  rated  to  a  church  rate,  and  were 
summoned  before  the  justices,  to  answer  a  complaint  that  they 
had  refused  to  pay  it ;  that  they  duly  attended,  and  in  good  faith, 
&c.,  disputing  and  intending  to  dispute  the  validity  of  the  said 
rate,  upon  the  hearing,  gave  to  the  defendants,  then  being  and 
acting  as  such  justices  as  aforesaid,  notice  that  they  disputed  the 
validity  of  the  rate,  and  required  the  defendants,  as  such  justices, 
to  forbear  from  and  not  to  give  judgment  in  respect  of  tlie  matter 
of  the  complaint ;  and  that  there  was  no  evidence  given  to  or 
before  the  defendants,  that  the  plaintiffs  did  not  in  good  faith  dis- 
pute the  validity  of  the  said  rate,  or  that  they  did  not  in  good 
faith  give  such  notice  to  the  defendants  as  aforesaid ;  yet  the 
defendants,  disregarding  the  said  notice,  and  assuming  to  act  as 
justices  when  they  well  knew  they  had  not  jurisdiction  to  make 
any  order  upon  the  matter  of  the  complaint,  made  an  order  for 
the  payment  of  the  amount  of  the  rate,  together  with  a  sum  for 
costs.  Demurrer,  on  the  ground  that  the  declaration  ought  to 
have  alleged  that  the  defendants  committed  the  grievances  mali- 
ciously. Held,  that,  assuming  the  plaintiffs  did  bo?id  fide  dispute 
the  rate,  and  gave  notice  to  the  justices,  the  jurisdiction  was 
ousted  ;  and,  the  action  being  against  justices  for  acting  in  excess 
of  their  jurisdiction,  the  declaration  was  good,  without  an  allega- 
tion that  they  acted  maliciously  and  without  reasonable  and 
probable  cause.^ 

§  1  a.  In  an  action  against  the  judges  of  an  election,  for  reject- 
1  Pease  v.  Chayton,  8  Jur.  (N.  S.)  482. 


CH.    X.]  PLEADING    IN    ACTIONS    AGAINST    OFFICERS.  373 

ing  a  vote,  the  declaration  must  contain  a  distinct  and  positive 
averment  tliat  tlie  plaintiff  has  resided  in  the  State  for  one  year 
next  preceding  the  election,  as  the  constitution  requiies.^ 

§  2.  The  clerk  of  a  county  court,  against  whom  an  action  of 
trespass  is  brought,  may  give  special  matter  in  evidence  under  a 
plea  of  "not  guilty  by  statute,"  by  virtue  of  the  13  &  14  Vict. 
c.  61,  §  19.2 

§  2  a.  In  an  action  against  a  clerk,  for  approving  a  bond  given 
upon  an  appeal  from  a  justice  of  the  peace,  which  provides  an 
insufficient  penalty,  the  averment  that  he  did  so,  "  contriving  and 
wrongfully  and  unjustly  intending  to  injure  the  plaintiff,  and  to 
deprive  him  of  the  benefit  of"  a  judgment  which  he  had  obtained 
on  the  appeal,  is  a  sufficient  allegation  that  the  act  was  done  wil- 
fully and  maliciously.^ 

§  3.  A  complaint  against  a  sheriff,  for  not  executing  a  deed  to 
the  plaintiff,  and  claiming  special  damages  for  the  failure  to  get 
possession  of  the  land  sold,  is  bad,  without  an  averment  that  the 
plaintiff's  failure  to  get  possession  was  caused  solely  by  the  want 
of  the  deed.^ 

§  4.  If,  in  an  action  against  a  sheriff  for  the  default  of  his 
deputy,  the  declaration  does  not  allege  that  he  is  sheriff,  the  defect 
will  not  be  aided  by  verdict.^ 

§  5.  In  an  action  against  an  officer  for  the  unlawful  taking  of 
property,  it  is  not  necessary  to  aver  that  such  property  was  ex- 
empt from  execution.^ 

§  5  a.  In  an  action  against  a  sheriff,  for  taking  and  selling  on 
execution  property  alleged  to  be  exempt,  the  cause  of  action  is 
complete,  without  any  statement  of  the  reason  or  authority  for 
taking  the  property,  and  its  exemption.  Consequently  the  defend- 
ant is  not  obliged  to  set  \\\)  in  his  answer  the  non-exemption  of 
the  property  in  order  to  prove  it  at  the  trial,  merely  because  the 
plaintiff  avers  its  exemption.  But  if  the  consideration  of  the 
judgment  becomes  material,  it  would  be  necessary  to  plead  such 
judgment,  and  the  defendant  might  then  show  its  consideration, 
without  having  averred  it,  if  material  to  answer  any  fact  proved 
by  the  plaintiff.' 

§  G.  In  an  action  against  an  officer  for  taking,  on  an  attachment 

1  Blair  v.  Eidtrcly,  41  Mis.  r,4.  5  Low  v.  Tilton.  I'J  X.  II.  271. 

2  Dews  V.  Kylcv,  7  Enp.  L.  &  Eq.  469.  •>  Stevens   v.    Soinerimlvke,    4  E.    D. 

3  Billings  V.  La<!ertv,  31  111.  318.  Smith,  418. 

4  Knight  V.  Fair,  12  Cal.  296.  T  Dennis  v.  Snell,  50  Barb.  95. 


37-1  PLEADING.  [book   III. 

against  A,  goods  mortgaged  to  B  ;  the  declaration  need  not  allege 
that  the  demand  made  by  the  plaintiff  on  the  officer,  as  required 
by  the  Mass.  Rev.  Sts.  c.  90,  §  79,  contained  a  just  and  true  ac- 
count of  the  mortgage-debt. 1 

§  6  a.  In  an  action  for  wrongfully  depriving  the  plaintiff  of 
the  use  and  possession  of  flour,  the  plea  averred,  that  the  flour 
was  taken  by  a  sheriff  under  an  attachment  on  warrant  against 
one  H.  ;  that  the  defendants  in  this  suit  were  the  plaintiffs  in  the 
other;  that  the  sheriff  took  said  flour  into  his  custody  as  the 
property  of  said  H. ;  and  that  said  attachment  suit  is  still  pend- 
ing. Held,  on  demurrer,  that  the  plea  was  fatally  defective,  in 
not  denying  that  the  flour  was  the  property  of  tlie  plaintiff  in  this 
suit,  or  averring  that  it  was  the  property  of  H.^ 

§  7.  A  complaint,  which,  after  stating  the  due  commitment  of  a 
prisoner  by  the  defendant  as  sheriff  to  the  county  jail,  then  pro- 
ceeds to  state  the  expiration  of  the  term  of  the  defendant's  office, 
the  election  of  a  new  sheriff,  the  due  qualification  of  the  latter, 
and  the  service  upon  the  defendant  of  the  certificate  of  the  county 
clerk  that  such  new  sheriff  had  qualified  and  given  the  security 
required  by  law  (2  N.  Y.  Rev.  Sts.  438),  and  avers  that  the  de- 
fendant did  not,  within  ten  days  after  such  service,  deliver  to  the 
said  new  sheriff  the  prisoner,  then  in  the  defendant's  custody  on 
the  said  execution,  and  confined  within  the  jail  liberties  ;  shows 
a  clear  and  explicit  neglect  of  duty  and  violation  of  the  statute, 
for  which  the  defendant  is  liable,  and  is  enough  to  put  him  to  his 
defence.^ 

§  8.  An  averment  in  a  declaration,  that  an  execution  was  re- 
turnable according  to  the  statute,  is  to  be  understood  as  meaning, 
that  the  execution  was  returnable,  on  its  face,  to  the  term  of  the 
court  to  which  by  law  it  should  have  been  made  returnable ;  and 
if,  when  offered  in  evidence,  it  appears  returnable  at  a  time  dif- 
ferent from  that,  it  should  be  excluded  on  account  of  the  vari- 
ance.^ Wiiere,  in  an  action  of  trespass,  the  defendant  justifies 
the  taking  by  a  writ  directed  to  him  as  an  officer,  and  the  action 
is  brought  before  the  term  of  the  court  to  which  such  writ  is 
returnable  ;  the  special  plea  need  not  allege  that  the  writ  was 
returned  at  the  term  of  the  court  to  which  it  was  made  return- 
able.^ 

1  Gassett  r.  Sanborn,  8  Gray,  218.  *  Forward  v.  Marsh,  18  Ala.  645. 

'■2  Richardson  c.  Hall,  21  Md.  399.  ^  Briggs  i'.  Mason,  31  Verm.  433. 

3  French  v.  Willet,  4  Bosw.  649. 


CH.    X.]  PLEADING   IN    ACTIONS   AGAINST   OFFICERS.  375 

§  9.  A  declaration  against  a  slierifT  stated  in  detail,  tliat  five 
several  writs  of  Ji.fa.  against  the  plaintill"  were  delivered  to  the 
sheriff;  that  he  afterwards,  under  the  said  several  writs  respec- 
tively, seized  the  plaintiff's  goods,  to  the  value  of  the  said  writs; 
and  took  for  executing  the  said  writs  a  large  sum,  to  wit,  52/. 
12s.  3d.,  the  same  being  more  than  he  was  entitled  to  by  35/.  ISs. 
Qd.  To  this  was  a  special  demurrer,  for  not  setting  out  with 
particularity  the  amounts  taken,  and  in  respect  of  what  foes  the 
excess  arose,  and  that  it  was  not  averred  that  the  extortion  took 
place  within  one  year  before  the  commencement  of  the  suit. 
Suggesting,  that  the  declaration  did  not  sufficiently  show  whether 
there  were  one  or  more  seizures,  the  court  held  that  this  objection 
was  not  sufficiently  taken  by  the  demurrer,  and  that  in  other  re- 
spects the  declaration  was  good.^ 

§  9  a.  In  an  action  against  an  officer  for  wrongful  levy,  the 
execution  was  described  as  in  favor  of  A  for  the  use  of  B  and  C, 
against  D.  Held,  the  declaration  was  not  sustained  by  proof  of 
an  execution  in  favor  of  B  and  A  for  the  use  of  C  against  D.^ 

§  9  &.  If  one  assume  to  justify  by  special  process  of  capias,  he 
should  in  his  plea  state  such  facts  as  authorize  that  form  of 
process.'^ 

§  10.  A  complaint,  in  an  action  against  a  sheriff  for  the  escape 
of  a  person  arrested  by  him  upon  a  process  for  contempt,  which 
alleges  that  the  sheriff "  suffered  and  permitted  such  person  to 
escape  and  go  at  large,"  states  a  voluntary  and  not  a  negligent 
escape.  An  answer  to  such  a  complaint,  which  in  terms  is  stated 
to  be  "a  further  separate  and  distinct  defence,"  and  which  avers 
that  such  person  "may  have  wrongfully  and  privily,  and  without 
the  knowledge,  permission,  or  consent  of  this  defendant,  escaped," 
<fec.,  and  that,  "  if  he  did  so  escape,  he  afterwards  "  returned  into 
custody,  <fec.,  is  insufficient  as  a  pleading,  as  it  does  not  deny, 
either  generally  or  specifically,  the  allegation  that  the  sheriff  per- 
mitted the  prisoner  to  escape.  The  New  York  statute  requires,  as 
essential  to  the  sufficiency  of  an  answer  to  such  a  complaint,  that 
it  contain  averments,  whatever  may  be  the  words  used,  amount- 
ing to  a  clear  and  distinct  allegation  that  the  alleged  escape  "  was 
made  without  the  consent  of  the  defendant.""* 

1  Bcrton  v.  Lawrence,  1  iMig.  L.  &  Eq.  3  "Wriglit  r.  ITazen,  24  Verm.  143. 

46o.  i  Loosey  v.  Orser,  4  Bosw.  391. 

'■2  Churcliman  v.  Stockton,  4G  111.  410. 


376  PLKADIXG.  [book   ITI. 

§  11.  In  an  action  against  a  constable  for  neglecting  to  execute 
process,  he  cannot  plead  the  defectiveness  of  his  writ,  unless  it  be 
for  want  of  jurisdiction. ^ 

§  12.  Where  a  sheriff  justifies,  in  trover,  under  an  attachment 
and  order  of  sale  therein  issued ;  an  averment  in  these  words, 
"  of  which  proceedings  under  said  order  of  sale,  said  defendant 
made  due  return  to  said  court,  according  to  the  mandate  thereof," 
is  not  sufficient,  the  facts  not  being  stated.^ 

§  13.  In  an  action  against  an  officer,  for  refusing  to  serve  a 
writ,  and  make  an  attachment  thereon  of  property  which  was 
pointed  out  to  him,  and  which  was  then  held  by  him  on  another 
precept,  and  afterwards  sold  for  more  than  sufficient  to  satisfy  the 
same;  the  defendant  cannot  prove,  as  a  bar  to  the  action,  a  settle- 
ment made  after  the  action  was  commenced,  and  not'  set  forth  in 
the  answer,  by  which  the  surplus  was  paid  over  to  other  creditors, 
with  the  plaintiff's  consent.^ 

§  14.  Where,  in  an  action  of  trespass  for  taking  goods,  the  de- 
fendant pleaded  in  justification  that  he  took  them  by  virtue  of  a 
writ  directed  to  him  as  an  officer;  a  replication,  that  he  did  not 
attach  said  goods  by  virtue  of  said  writ,  upon  special  demurrer 
was  held  to  be  a  negative  pregnant,  and  therefore  bad.^ 

§  15.  To  a  plea  by  the  sheriff",  in  an  action  against  him  for  neg- 
lecting to  return  a  writ  of  attachment,  that  the  execution  defend- 
ant w^as  worthless ;  fraud  in  the  bill  of  sale  offered  to  sustain  this 
plea  need  not  be  replied,  but  may  be  shown  by  evidence.^ 

§  16.  To  a  declaration,  that,  the  plaintiff's  having  bailed  and  let  to 
P.  divers  wagons  for  a  term,  and  being  entitled  to  and  the  owners 
of  the  wagons,  subject  to  the  interest  of  P.  thereupon  during  the 
term,  and  while  the  plaintiffs  and  P.  were  so  interested,  the  de- 
fendant converted  them  to  his  own  use,  and  sold  the  same,  whereby 
the  plaintiffs  were  injured  in  their  title  to  the  wagons,  and  the 
same  became  lost  to  them  ;  it  is  a  good  plea,  that  the  defendant 
sold,  but  not  in  market  overt,  the  wagons,  as  sheriff",  in  the  execu- 
tion of  a /?.  fa.,  and  that  at  the  time  of  the  sale  he  had  not  any 
notice  of  the  plaintiffs'  interest  in  the  wagons.  Another  plea, 
that  the  defendant  seized  and  sold  the  wagons,  not  maliciously,  and 
not  in  market  overt,  as  sheriff,  in  execution  of  a^.  fa.;  and  that 

1  Coverdale  v.  Fowler,  4  Har.  358.  *  Bri£?£cs  v.  Mason,  81  Yerm.  433. 

2  Young  V.  Davis,  30  Ala.  213.  5  Smith  v.  Tooke,  20  Tex.  750. 

3  Wolcott  V.  Root,  2  Allen,  194. 


CH.    X.]  PLEADING    IN    ACTIONS   AGAINST    OFFICERS.  377 

the  plaintiffs  had  not  sustained  and  will  not  sustain  any  dam- 
age. New  assignment  to  both  pleas  :  that  the  defendant  con- 
verted the  wagons  by  absolutely  selling  the  plaintiffs'  interest 
and  delivering  the  wagons  to  divers  persons  in  pursuance  of  the 
sale,  and  thereby  causing  the  same  to  be  used  by  those  persons 
and  worn  by  such  users.  Held,  that  the  plaintiffs  were  entitled 
to  judgment  on  the  new  assignment  to  both  pleas. ^ 

§  17.  A  defendant,  failing  to  justify  under  a  liaherc^  the  judg- 
ment in  ejectment  having  been  set  aside  as  irregular,  may,  either 
under  a  plea  that  the  plaintiff  was  not  possessed,  or  that  a  third 
party  was,  prove  the  title  upon  which  he  recovered  in  ejectment.^ 

§  18.  A  justification  of  breaking  an  inner  door,  in  order  to 
search  for  and  arrest  the  party,  must  allege  a  demand  of  the  key, 
or  that  no  one  was  present  of  whom  a  demand  could  be  made. 
It  is  not  sufficient  to  allege  that  the  door  was  locked,  so  that  with- 
out breaking  it  the  officer  could  not  enter.*^ 

§  19.  In  a  suit  for  false  imprisonment,  if  the  defendant  plead 
that  he  was  sheriff,  and  arrested  the  plaintiff  by  virtue  of  process; 
a  replication,  of  the  tender  of  a  bail-piece  to  the  defendant,  which 
he  refused  to  accept,  is  bad.^ 

§  20.  Wlienever  new  matter  is  introduced  in  any  of  the  plead- 
ings in  a  suit,  the  plea  should  conclude  with  a  verification.  Thus 
where  the  defendant,  in  an  action  of  trespass,  justifies  the  taking 
of  the  property  by  virtue  of  a  rate-bill  and  warrant,  and  the  plain- 
tiff replies  a  tender  of  the  amount  of  the  tax  and  interest  ;  a 
rejoinder,  that  the  defendant  was  entitled  to  and  claimed  travel- 
ling fees,  in  addition  to  the  tax  and  interest,  and  that  therefore 
the  tender  was  insufficient,  being  new  matter,  should  conclude 
with  a  verification.^ 

§  21.  The  attorney  of  P.,  who  had  obtained  judgment  in  an 
action  against  W.  F.,  caused  a  fi.fa.  to  issue  against  W.  F.,  and 

indorsed  on  the  writ,  "  The  defendant  is  a ,  and  resides  at 

R.  in  your  bailiwick."  The  writ  was  delivered  to  the  sherift',  who 
seized  the  goods  of  W.  F.,  the  son,  he  being  the  only  person  of 
that  name  who  resided  at  R.  The  real  defendant,  W.  F.,  the 
father,  resided  at  C,  which  adjoined  R.  An  action  having  been 
brought  by  the  son  against  the  sheriff,  in  which  the  sherift' had  to 

1  Lancasliire,  &c.  v.  Fitzhugh,   6  II.  &         3  1  Chit.  PI.  518  ;  3  Bos.  &  P.  223. 
N.  502.  <  Yingling  v.  \lo\^\^<i,  W  Hill,  310. 

-  BOcker  v.  Beeston,  2  F.  &  F.  410  5  Ju.slyn  c.  Tracy,  I'J  Verm.  5tJ9. 


378  PLEADING.  [book   III. 

pay  damages,  he  sued  the  attorney  to  recover  compensation.  It 
was  agreed  that  both  the  attorney  and  tlie  sheriff  acted  bond  fide. 
A  first  count  alleged  that  the  defendant,  by  an  indorsement  on 
the  writ,  and  with  the  intent  that  the  plaintiff  should  act  on  the 
statement  contained  in  the  indorsement,  falsely  stated  and  repre- 
sented to  the  plaintiff,  that  the  W.  F.  against  whose  goods  the 
writ  was  directed  resided  at  R.  The  second  count  alleged  the 
indorsement  to  have  been  negligently,  carelessly,  and  improperly 
made.  The  third  count  alleged  that  the  defendant,  having  issued 
they?. /a.,  directed  and  required  the  plaintiff,  to  wit,  by  the  in- 
dorsement on  the  writ,  to  execute  the  writ  by  seizing  the  goods 
of  W.  F.,  who  resided  at  R.,  as  and  for  the  goods  of  the  W.  F. 
in  the  writ  named.  Held,  by  Cockburn,  C.  J.,  Hill  and  Black- 
burn, JJ.,  that  the  first  count,  which  was  simply  for  a  misrepre- 
sentation, could  not  be  supported ;  that  the  second  count  was 
defective  in  not  showing  any  obligation  or  duty  on  the  part  of 
the  attorney,  as  between  him  and  the  sheriff,  to  make  the  indorse- 
ment ;  and  the  third  count  could  not  be  supported,  inasmuch  as 
the  indorsement  on  the  writ  was  no  more  than  a  statement  by  the 
attorney  for  the  purpose  of  affording  information  to  the  sheriff, 
leaving  the  sheriff  to  his  own  discretion  as  to  how  he  would  act. 
But  by  Wightman,  J.,  that  the  indorsement  was  a  direction  to 
the  sheriff  to  take  the  goods  of  W.  F.,  who  resided  at  R.,  and 
therefore  the  plaintiff  was  entitled  to  judgment  on  the  third  count. 
Also  held,  by  the  court,  that  the  sheriff  was  not  entitled  to  re- 
cover so  much  of  the  damages,  as  were  given  in  respect  of  his 
officer's  having  remained  in  possession  after  he  had  notice  that  the 
execution  was  wrong.^ 

1  Childers  v.  Wooler,   6  Jur.   (N.  S.)  444;  29  L.  J.  Q.  B.  129;  8  W.  R.  321 ;  2 
L.  T.  (N.  S.)49. 


CH.  XI.]    PLEADING   IN    ACTION    AGAINST   RAILROADS,   TOWNS,  ETC.    379 


CHAPTER    XI. 

PLEADINGS  IN  ACTIONS  AGAINST  RAILROADS  AND  TOWNS,  AND    IN   CASES 
OF    MASTER    AND    SERVANT,    BAILMENT,    LANDLORD,  &C.,  SEDUCTION. 

1.  Railroads.  25.  Carriers. 

12  a.  Highways  —  Towns.  32.  Landlord  and  Tenant. 

22.  Ma^iter  and  servant.  35.  Crim.  con.  and  seduction. 

23.  Innkeepers. 

§  1.  In  an  action  against  a  railroad  ^  for  causing  the  death  of  a 
person,  it  is  sufficient  to  allege  that  the  defendants  "  did  carelessly 
and  negligently  run  over,"  <fcc.,  without  stating  the  facts.-  (a)  So 
in  an  action  against  a  railroad  company  for  personal  injuries, 
where  the  facts  stated  show  a  common-law  liability,  independent 
of  any  charter  or  statute,  an  averment  that  the  injury  was  occa- 
sioned by  the  defendants'  negligent  management  of  the  cars  and 
engines  of  "  a  railroad  "  in  Jersey  City,  of  which  the  defendants 
then  had  possession,  is  sufficient,  on  demurrer.'^ 

§  1  a.  The  complaint  in  a  statutory  action  by  an  administrator 
against  a  railroad,  for  causing  the  death  of  his  intestate,  must 
show  that  the  latter  left  a  widow  or  children  or  next  of  kin,  and 

1  See  18  Ind.  168 ;  9  Allen,  557 ;  23         2  Indianapolis,  &c.  v.  Keeley,  23  Ind. 
Ind.  553 ;  21  ib.  10 ;  23  ib.  81,  101,  340 ;     133. 
20  ib.  229.  "  Austin  v.  NewYork,  &c.,  1  Dutch.  381. 

(a)  In  an  action  against  a  railroad  for  against  a  railro.ad  for  ncglipently  running 

injuries  to  horses  while  being  transijortetl  over  a  ])crs()n  with  an  engine,  need  not 

over  their  road,  and  in  consequence  of  the  show    the    particular    facts    constituting 

cars   being    unfit  for    the    purpose  ;  tiie  negligence.     But  it  must  show  that  there 

wrong  or  negligence  may  be  alleged  as  a  was  no  fault  on  the  part  of  the  person  run 

breach  of  the  duty  to  carry  safely.     Great  over.     Indianapolis  r.  Keeley 's,  23   Ind. 

V.  Hawkins,  18  Mich.  427.  133. 

In   an  action  against  a  railroad  for  in-         In  a  suit  against  a  railroad  tor  injury  to 

juries  caused  by  a  collision  with  its  cars,  baggage,  while  in  possession  of  the  coni- 

tlie  complaint  may  allege  that  the  defend-  pany  ;  the  complaint  must  allege  that  the 

ant,    with    carelessness    and   with    gross  injury  occurred  tiirough  the  negligence  of 

negligence,  caused  one  of  its  engines  to  the  defendant.     Candee  v.  rennsylvauia, 

run  upon  the  track,  &c.     Ohio  ;;.  Davis,  21  Wis.  682, 
23  Ind.  553.     The  complaint,  in  an  action 


380  PLEADING.  [book   III. 

give  their  names,  where  the  statute  provides  that  the  damages 
must  inure  to  their  benefit.^ 

§  1  5.  In  an  action  against  a  raih'oad  by  the  widow  and  cliikh-en 
of  a  person  killed,  because  the  defendant  "  did  not  take  due  care 
and  diligence  and  skill  in  allowing  the  deceased  safe  and  conven- 
ient way  and  sufficient  time  to  get  into  the  cars  on  the  main 
line,  but  carelessly  and  negligently  caused  the  engine  to  be  so 
run,  whilst  he  was  attempting  to  get  into  the  cars,  as  to  throw 
him  down  and  kill  him:  "  held, the  fact,  that  the  train  was  behind 
time  might  be  considered  on  the  question  of  negligence,  although 
not  alleged  ;  as,  if  such  train  had  been  on  time,  the  deceased  would 
probably  have  had  time  to  get  into  the  cars  before  the  engine 
which  occasioned  his  death  came  up.^ 

§  2.  A  railroad  servant,  suing  for  personal  injuries,  need  not 
in  his  complaint  negative  knowledge  or  notice  by  him  of  the 
alleged  defects  in  the  road  and  machinery.^ 

§  2  a.  In  an  action  against  a  railroad  by  one  servant  for  in- 
juries received  through  the  negligence  of  another,  the  complaint 
must  allege,  either  expressly  or  by  stating  facts  from  wliich  it 
clearly  appears,  that  the  plaintiff  did  not  by  his  own  fault  or  neg- 
ligence contribute  to  the  injury .^ 

§  2  6.  In  an  action  by  an  employe  of  a  railroad  against  the 
company,  for  the  careless  construction  of  a  winch,  whereby  he 
was  injured  while  in  performance  of  his  duty;  the  defendant  can- 
not claim  that  the  injury  was  caused  by  the  negligence  of 
another  employe,  without  an  allegation  thereof  in  the  answer 
—  a  mere  averment  that  the  injury  was  caused  by  the  plaintiff's 
own  negligence  is  not  sufficient.^ 

§  3.  In  an  action  against  a  railroad  company  for  loss  of  a  trunk, 
the  declaration  need  not  allege  that  the  owner  was  a  passenger ; 
that  he  was  a  passenger,  and  that  he  owned  the  trunk,  will  be 
primd  facie  presumed  from  the  production  by  him  of  the  baggage- 
check,  which  would  only  be  given  to  a  passenger.^ 

§  3  ft.  In  an  action  against  a  railroad  for  a  personal  injury,  an 
averment  in  the  declaration,  that  the  plaintiff  was  struck  by  their 
locomotive  engine  while  travelling  in  the  highway,  is  not  sustained 
by  proof,  that,  by  means  of  the  defendants'  negligence  in  the  man- 

1  Indianapolis  v.  Keeley,  23  Ind.  133.  *  Evansville  v.  Dexter,  24  Ind.  411. 

2  Pennsylvania  I'.  Henderson,  51  Penn.  ^  Conlin  v.  San  Francisco,  36  Cal.  404. 
315.  6  Illinois,  &c.  v.  Copeland,  24  111.  332. 

3  Indianapolis  v.  Klein,  11  Ind.  38. 


CH.  XI.]    PLEADING   IN    ACTIONS   AGAINST    RAILROADS,  TOWNS,  ETC.  381 

agement  of  their  train,  the  plaintiff's  horse  was  frightened,  and 
ran  or  was  driven  out  of  tlie  highway,  five  or  six  rods  before 
reaching  the  raih'oad  crossing,  upon  land  owned  b}-^  the  defend- 
ants, and  the  plaintiff  was  there  struck,  while  attempting  to  cross 
the  railroad.  And  the  declaration  cannot  be  amended  after  ver- 
diet  so  as  to  cure  this  variance.^  A  declaration  against  a  railroad 
for  killing  a  horse,  alleging  negligence  in  failing  to  keep  a  fence  in 
repair,  is  not  sustained  by  mere  proof  of  carelessness  in  leaving 
open  a  gate  on  the  line  of  fence  at  a  farm  crossing.'-^ 

§  3  Z>.  Where  the  gravamen  is  loss  by  fire,  occasioned  by  negli- 
gence in  allowing  sparks  to  escape  from  an  engine,  the  plaintifi"is 
not  confined  in  his  proof  to  the  precise  place  where  he  alleged 
the  fire  originated.^ 

§  3  c.  Where,  in  an  action  against  a  railroad  for  causing  the 
death  of  the  plaintiff's  husband,  one  count  alleges  it  as  done 
directly  by  the  defendants,  the  other  through  the  negligence  of 
their  servants  ;  there  is  but  one  cause  of  action.^ 

§  4.  A  declaration  against  a  railroad  for  killing  stock  may  con- 
tain one  count  describing  the  stock  as  common,  and  another  as 
of  the  full  blood;  and  the  plaintiff  cannot  be  required  to  elect 
between  thera.^ 

§  5.  In  Indiana,  the  declaration  must  allege  that  cattle  killed 
upon  a  railroad  were  killed  in  the  county.^ 

§  6.  In  Illinois,  in  an  action  for  injury  done  to  animals  by  a 
railroad,  the  plaintiff  should  aver,  that,  when  injured,  they  were 
not  within  the  limits  of  a  town,  village,  &c.'^ 

§  7.  In  actions  to  recover  damages  for  the  killing  of  stock  by 
the  cars  of  a  railroad  company,  the  complaint  must  show  either 
carelessness,  or  that  the  road  was  not  properly  fenced.^  And  a 
complaint  against  a  railroad,  for  killing  animals  by  its  rolling-stock, 
is  bad,  even  after  verdict,  unless  it  allege  negligence,  or  that  the 
road  was  not  fenced.^ 

§  8.  The  first  count  of  the  declaration  stated,  that  the  defend- 
ants were  the  owners  and  occupiers  of  a  railway,  and  of  a  station 
thereon  for  the  loading,  &c.,  of  cattle  carried  thereby,  and  of  a 

1  Shaw  V.  Boston,  &c.,  8  Grav,  45.  *»  Indianapolis,  &.c.  v.  Wilsey,  20  Ind. 

•i  Illinois  V.  McKee,  48  111.  IlVt.  22'J. 

^  Illinois  V.  McClellanil,  42  III.  355.  '  Chicago,  &c.  v.  Carter,  20  111.  390. 

i  BrowncU  v.  Pacific,  47  Mis.  230.  »  Indianapolis,   &c.    v.   Sparr,  15  Ind. 

5  Tiie  Toledo,  &c.  v.  Daniels.  21   Ind.  440;  Same  r.  Willinnis,  ib.  4S(1. 
256.     See  Presdt.  &c.  i-.  Smith,  lUib.  42  ;  »  Indianapolis,   &c.   r.  Brucey,  21  ib. 

Story  V.  O'Dea,  23  ib.  326.  215. 


382  PLEADING.  [book   III. 

yard  adjoining  the  station,  through  which  yard  the  cattle  were 
accustomed  to  pass  in  going  from  the  station  to  a  certain  common 
highway  near  thereto ;  and  that  the  defendants,  by  reason  of  the 
premises,  ought  to  have  maintained  sufficient  fences  between  the 
said  yard  and  the  railway,  so  as  to  prevent  cattle  lawfully  being 
in  the  yard  from  straying  thereout  into  and  upon  the  railway  : 
but  that  they  omitted  to  maintain  such  fences,  whereby  a  bull  of 
the  plaintiff,  lawfully  being  in  the  yard,  on  his  way  to  the  high- 
way, without  default  or  negligence  on  his  part,  strayed  from  the 
yard  on  to  the  railway,  and  was  killed  by  a  passing  train.  Held, 
there  was  no  liability  upon  the  company,  either  by  the  common 
law  or  by  the  Sts.  8  &  9  Vict.  c.  20,  §  68,  to  fence  their  yard 
from  the  railway,  and  consequently  the  count  disclosed  no  cause 
of  action.  The  second  count  alleged,  that  a  certain  bull  of  the 
plaintiff  was  lawfully  in  a  close,  adjoining  a  railway,  of  which  the 
defendants  were  owners  and  occupiers,  and  along  which  railway 
they  had  not  made  any  fences  for  preventing  cattle  being  in  the 
close  from  straying  thereout  upon  the  railway,  and  that,  whilst 
the  bull  was  lawfully  in  the  close,  the  defendants  and  their  ser- 
vants negligently  and  wrongfully  chased  and  frightened  the  bull, 
and  so  caused  it  to  run  upon  the  railway,  where  it  was  killed. 
The  bull,  with  other  cattle  which  had  been  brought  by  the  rail- 
way, being  in  the  station-yard,  a  place  unlighted  and  not  fenced 
from  the  railway,  a  porter  came  out  of  the  office  with  a  lantern, 
such  as  were  ordinarily  used  by  porters,  in  his  hand,  and  the  light 
startled  some  of  the  beasts,  and  caused  the  plaintiff's  bull  to  run 
upon  the  line,  where  it  was  knocked  down  and  killed  by  a  passing 
train.  Held,  no.  evidence  for  the  jury,  that  the  company's  ser- 
vants had  been  guilty  of  negligence.^ 

§  9.  The  distinction,  however,  is  made,  that,  in  an  action  on 
the  case  at  common  law  against  a  railroad  company  for  killing 
cattle,  negligence  should  be  averred  and  proved ;  but  it  is  other- 
wise, if  the  action  is  brought  under  the  statute.^  So  a  declara- 
tion alleged,  that  the  defendants  neglected  to  keep  a  suitable 
fence  along  their  track,  and  that  ''  for  want  of  such  fence  the 
plaintiff's  horse  escaped  from  his  pasture  and  went  at  large,  and 
by  means  of  going  at  large,  as  aforesaid,  the  horse  was  greatly 

1  Eoberts  v.  Great,  &c.  4  C  B.  (N.  S.)  -  Terre    Haute   v.  Augustus,   21   111. 

506.  186. 


CH.    XI.]    PLEADING  IN  ACTIONS  AGAINST  RAILROADS,  TOWNS,  ETC.    383 

injured  ;  whereby  an  action,  <fec."  Hold,  tliongh  this  declaration 
might  have  been  bad  on  demurrer,  it  was  sullicient  on  a  motion 
in  arrest  of  judgment.^ 

§  10.  In  a  suit  against  a  railroad  company  to  recover  for  stock 
killed,  the  allegation  that  the  road  was  not  fenced  is  a  material 
one,  and  must  be  proved.^ 

§  10  a.  A  complaint,  in  an  action  against  a  railroad  to  recover 
for  animals  killed  on  its  track  by  its  cars,  which  alleges  "  that  at 
the  place  and  time  when  said  animals  were  killed  by  the  defend- 
ant's locomotive  and  cai-s,  the  same  was  not  securely  fenced  as 
required  by  law,"  sufficiently  alleges  tiiat  the  railroad  was  not 
securely  fenced  at  the  place  where  the  animals  entered  upon  the 
track.2 

§  10  h.  In  an  action  under  the  (Mis.)  Statute,  which  provided 
that  the  owner  of  a  slave  might  recover  twice  the  value  of  the 
slave  from  a  railroad  "  in  this  State,"  which  shall  transport  such 
slave  over  its  road,  without  the  owner's  permission  ;  the  petition 
must  aver  that  the  defendant  was  a  railroad  corporation  in  Mis- 
souri.* 

§  10  c.  A  petition  against  a  railroad  for  the  value  of  a  steer 
killed  by  their  cars,  containing  no  allegation  of  negligence,  and 
it  not  appearing  that  the  injury  was  not  committed  at  the  cross- 
ing of  a  public  highway,  does  not  state  a  cause  of  action.^ 

§  11,  To  an  action  for  forcibly  entering  upon  land,  digging, 
excavating,  making  embankments,  &c.,  whereby  a  mill-seat  and 
buildings  w^ere  destroyed ;  it  is  a  sufficient  answer  on  demurrer, 
that  the  defendants  entered  as  the  servants  of  a  railroad,  which 
had  legally  appropriated  the  property  for  its  line  ;  even  though  the 
company  might  be  liable  to  a  suit  for  any  personal  property  not 
taken  for  the  construction  of  the  road.*^ 

§  12.  In  an  action  for  injury  to  land,  the  defendants  (a  railway 
company)  pleaded,  that  they  entered  on  the  land  under  §  85  of 
the  Land  Clauses  Consolidation  Act,  before  the  expiration  of  the 
prescribed  period  for  exercising  their  compulsory  powers;  and, 
having  so   entered  and   being  lawfully  in  possession,  that  they, 

»  Holden    v.   Rutland,  &c.,   30  Verm.  <  Welton  v.  Pacific,  34  IMis.  358. 

297.  *  Dyer  r.  Pacific,  34  Mis.  127  ;  West  r. 

2  Indianapolis,  &c.  v.  Wharton,  13  Ind.  Hannibal,  34  Mis.  177  ;  Calvert  v.  Ilan- 

509.  nibal,  34  Mis.  242. 

8  Indianapolis  v.  Adkins,  23  Ind.  340.  6  Green  v.  liooAy,  21  Ind.  10. 


384    .  PLEADING.  [book   III. 

after  the  expiration  of  the  prescribed  period,  continued  in  posses- 
sion, and,  in  the  due  and  lawful  exercise  of  the  powers  of  the 
said  act,  committed  the  grievances  complained  of.  The  plaintiff 
replied  (admitting  the  statute)  de  injuria  absque  7^esiduo  causce. 
Held,  the  replication  was  bad,  as  the  plea  claimed  an  interest  in 
land,  and  the  replication  traversed  an  authority  in  law  by  the  de- 
nial of  acting  under  the  statute.^ 

§  12  a.  In  an  action  by  a  toiun,  for  the  destruction  of  a  road 
way  and  bridge,  one  count  set  out  that  the  town  was  possessed 
of  such  highway  and  bridge,  and  another,  that  the  town  was 
the  owner  of  them.  Held,  the  interest  of  the  town  was  suflS- 
ciently  set  forth.^ 

§  13.  Where  two  highways  lead  across  a  waste,  in  which  and 
near  the  highways  there  is  a  quarry  unfenced  and  unguarded, 
and  a  person  crossing  from  one  highway  to  the  other,  in  the  dark, 
falls  into  the  quarry  and  is  injured  ;  no  action  lies  against  the 
owner  of  the  quarry,  without  showing  that  the  quarry  is  so  near 
the  highway  as  to  be  a  public  nuisance.  Nor  is  it  sufficient  to 
aver  that  "  all  persons,  having  occasion  to  cross  or  pass  over  the 
waste  land,  have  been  used  and  accustomed  to  go  upon,  along, 
and  across  the  same,  without  interruption  or  hindrance  from,  and 
with  the  license  and  permission  of,  the  owners  of  such  waste 
land  ;  and  that  the  quarry  was  and  is  situate  near  to  and  between 
two  public  highways  leading  over  and  across  the  waste  land,  and 
was  and  is  precipitous,  and  of  great  depth  and  width,  and  dan- 
gerous to  persons  who  might  have  occasion  to  cross  over  the 
waste  land,  for  the  purpose  of  passing  from  one  of  such  roads  to 
the  other  of  them,  beside  or  near  the  quarry."  ^ 

§  14.  The  want  of  a  sufficient  railing,  barrier,  and  protection, 
to  prevent  travellers  passing  upon  a  highway  from  running  into 
some  dangerous  excavation  or  pond,  or  against  a  wall,  stones,  or 
other  dangerous  obstruction,  without  its  limits,  but  in  the  general 
direction  of  the  travel  thereon,  may  properly  be  alleged  as  a 
defect  in  the  highway  itself.'* 

§  15.  In  a  declaration  against  a  town  for  special  damage  hap- 
pening by  reason   of  the  insufficiency  of  a  highway,  it  is  not 

1  Worsley  v.  South,  &c.,  4  Eng.  L.  &  3  Hounsell  v.  Smith,  7  C.  B.  (N.  S.) 

Eq.  228.  897  ;  29  L.  J.  C.  P.  303 ;  8  W.  R.  277. 

-'  Hooksett  V.  Amoskeag  Co.,  44  N.  H.         *  Davis  v.  Hill,  41  N.  H.  329. 
105. 


CH.  Xr.]  PLEADING   IN    CASE    OP   TOWNS,    BAILMENT,    ETC.  385 

necessary  to  allege  that  the  highway  was  establisiied   in  one  of 
the  modes  authorized  by  statute.^ 

§  IG.  In  an  action  brought  against  a  town,  upon  the  Connecti- 
cut statute  "  concerning  highways  and  bridges,"  for  injuries  by 
reason  of  a  defect  in  a  bridge;  averments  respecting  an  injury 
to  the  person  of  the  plaintiff  can  be  united,  in  each  count  of  the 
declaration,  with  averments  respecting  an  injury  to  his  property, 
although  damages  for  these  different  injuries  are  given  by  differ- 
ent sections  of  the  statute.^ 

§  17.  An  averment,  that  there  was  in  the  highway  "a  ditch  or 
uncovered  drain  running  across  the  same,"  is  supported  by  testi- 
mony, that  there  was  a  water-bar  about  six  inches  high  across  the 
highway,  with  a  deep  rut  or  "  cradle-hole  "  above  it.'^ 

§  18.  An  averment,  that  the  plaintiff's  horse,  by  reason  of  the 
narrowness  of  the  highway  and  the  want  of  a  sufficient  railing, 
was  precipitated  off  the  steep  side  of  the  highway  into  a  pond 
among  certain  timbers,  and  the  shoulder  of  the  horse  was  so 
broken  that  it  became  necessary  to  kill  him ;  is  supported  by 
proof,  that  the  horse,  by  the  insufficiency  and  giving  way  of  the 
rail,  struck  his  shoulder  against  the  stone  post  on  which  the  rail 
had  rested,  and  so  broke  his  shoulder,  before  falling  into  the 
pond.* 

§  19.  It  is  not  competent  to  declare,  with  a  continuando,  for 
injuries  occasioned  by  the  obstruction  or  insufficiency  of  a  high- 
way, or  to  allege  a  repetition  of  such  injuries  upon  divers  days 
and  times  between  a  day  specified  and  the  commencement  of  the 
suit.  It  is  the  per  quod  which  is  the  gravamen  of  the  action,  and 
not  the  insufficiency  of  the  road;  and  the  injury  sustained  at  any 
one  time  cannot  be  continued  or  repeated.  In  such  case  the 
plaintiff,  without  any  waiver  on  his  part,  may,  upon  the  objection 
of  the  defendant,  be  confined  in  his  proof  to  a  single  injury  ;  or  it 
might  be  ground  for  a  special  demurrer.^ 

§  19  a.  In  an  action  against  a  city  for  an  injury  caused  by  a 
defective  sidewalk,  the  complaint  must  allege  that  the  city  author- 
ities had  notice  of  the  defect,  or  with  reasonable  care  might  have 
known  of  it.*" 

§  19  b.  In  an  action  against  a  town  for  an  injury  caused  by  a 

1  Hurley  v.  Manclicster,  89  N.  11.  '289.  *  lb. 

-  Seger  i-.  Barkliaiiistc-d,  '22  Conn.  29.  ^  Baxter  v.  AVinooski,  &c.,  22  Verm. 

3  Goklthwait  v.    East  Bridgewater,  5     114. 
Gray,  61.  «  Cuthbert  v.  Appleton,  22  Wis.  642. 

25 


886  PLEADING.  [book  III. 

defect  in  the  highway,  judgment  will  not  be  arrested  after  ver- 
dict, because  the  declaration  alleges  that  "  the  inhabitants  of  said 
town  (instead  of  '  said  town ')  were  bound  to  keep  and  maintaiii 
in  good  and  sufficient  repair  said  highway."  ^ 

§  20.  An  excavation  was  made  by  the  defendant  on  his  own 
land,  a  short  distance  from  a  sidewalk,  and  was  left  unguarded, 
he  having  removed  a  fence  which  had  been  standing  between  his 
land  and  the  street.  The  night  following,  A,  passing  along  the 
sidewalk,  got  off  the  walk,  and  fell  in  and  was  injured.  A  general 
statute  made  it  the  duty  of  the  city  to  protect  the  sidewalk  by  a 
railing  where  necessary,  and  A  recovered  damages  against  the 
city.  In  a  suit  brought  by  the  city  to  recover  indemnity  from 
the  defendant,  held,  1.  That  the  liability  of  the  defendant  did  not 
depend  upon  how  near  the  excavation  was  to  the  sidewalk,  but 
upon  the  question  Avhether,  in  the  circumstances,  it  rendered 
travelling  upon  the  sidewalk  dangerous  [one  judge  dissenting]. 
2.  That  the  defendant  was  liable,  on  the  ground  of  his  personal 
connection  with  the  wrongful  acts,  and  that  it  was  not  necessary 
that  he  should  have  been  in  the  occupancy  of  the  land.  3.  That 
it  was  not  necessary,  in  consequence  of  the  allegation  of  a  general 
duty  on  the  part  of  the  city  to  protect  the  sidewalk  by  a  railing, 
to  allege  a  particular  duty  on  the  part  of  the  defendant  to  erect 
the  railing  in  this  instance,  but  the  general  allegation,  of  the  de- 
fendant's negligence  in  leaving  the  excavation  exposed,  and  the 
subjection  of  the  city  to  damages  in  consequence  of  it,  was  suffi- 
cient.2 

§  21.  A  declaration  against  a  city  is  sufficient,  which  alleges 
the  existence  of  a  street  within  its  limits  without  a  sewer,  whereby 
stagnant  water  flowed  upon  the  plaintiff's  land.^ 

§  22.  A  petition  is  not  bad  on  demurrer,  on  the  ground  of 
respondeat  siqjerior,  which  alleges  a  wrong  committed  by  the 
defendant  while  in  another's  employ,  but  not  that  it  was  done 
within  the  scope  of  his  employment.  An  answer,  denying  that 
the  defendant  committed  the  act,  and  alleging  that  it  was  done  by 
another,  is  a  mere  special  denial,  requiring  no  reply.* 

§  23.  In  an  action  by  a  guest  against  an  innkeeper  for  the  value 

1  Flanders  v.  Stewartstown,  47  N.  H.  »  Smith  v.  Milwaukee,  18  Wis.  63. 
549.                                                                         4  Hofiinan  v.  Gordon,  15  Ohio  St.  211. 

2  Norwich  v.  Breed,  30  Conn.  535. 


CH.    XI.]  PLEADING   IN   CASE    OF    BAILMENT,    ETC.  387 

of  goods  stolen,  the  allegation  of  carelessness,  if  necessarily  made, 
will  at  any  rate  be  proved  sulFiciently  by  proof  of  the  loss  of  the 
goods  from  the  room  in  which  the  guest  lodged.^ 

§  24.  An  innkeeper  cannot  under  the  New  York  act  avoid 
responsibility  for  goods  stolen,  when  the  guest  failed  to  bolt  his 
door,  unless  he  sets  up  this  fact  in  his  answer.^ 

§  24  a.  The  words,  in  a  declaration  against  an  innkeeper, 
"being  entertained  as  a  guest  iu  the  inn  of  the  said  defendant," 
constitute  a  sufficient  allegation  that  he  was  an  innkeeper.^ 

§  25.  In  an  action  against  a  carrier,  for  breach  of  duty  as  such, 
although  negligence  be  averred,  it  is  not  necessary  to  show  any 
positive  misconduct."* 

§  26.  In  an  action  against  a  carrier  for  loss  of  baggage,  the 
plaintiff  alleged  and  proved  that  he  was  a  carrier,  and  took  him 
and  his  baggage  to  be  carried,  and  in  the  same  count  alleged 
a  special  contract  to  carry  safely.  Held,  the  special  allegation 
might  be  stricken  out  as  surplusage,  and  the  plaintiff  could  recover 
on  the  general  allegations,  under  Minnesota  Rev.  Sts.  c.  86.^ 

§  27.  In  an  action  against  a  steamboat,  as  a  common  carrier,  it 
is  not  necessary  that  the  petition  should  expressly  state  that  the 
steamboat  is  a  common  carrier,  if  it  clearly  appear,  from  the  whole 
petition,  that  the  contract  was  entered  into  with  her  in  that 
capacity.^ 

§  28.  In  trover  against  a  carrier,  the  declaration  need  not  set 
forth  the  duty  of  the  defendant  as  carrier ;  if  it  allege  his  busi- 
ness, negligence,  and  the  loss  caused  thereby.' 

§  29.  In  an  action  against  a  common  carrier,  for  non-delivery 
of  goods  intrusted  to  him  under  an  agreement,  by  which  he  was 
only  to  be  responsible  for  loss  or  damage  occasioned  by  his  fraud 
or  negligence ;  the  objection,  that  the  complaint  did  not  allege 
any  such  fraud  or  negligence,  cannot  be  taken  after  trial  and 
verdict.  Nor  that  the  legal  effect  of  the  contract  proved  varied 
from  that  described.^ 

§  29  a.  In  an  action  against  a  railroad  for  the  value  of  certain 
goods,  the  petition  alleged,  that  on  the  4th  of  December,  1864, 
the  defendants  were  engaged  in  the  business  of  common  carriers 
and  as  warehousemen,  running  and  operating  a  road  from  Chicago 

1  Gile  i;.  Libby,  36  Barb.  70.  »  AVar  Eagle  i'.  Nuttinp,  1  Min.  2-56. 

2  lb.  6  Sinitliers  v.  War  Eaple,  2'.)  Mis.  312. 
^  Nnreross  v.  Norcross,  5.3  Maine,  163.  ^  Wrifjlit  v.  McKcc,  ;i7  Verm.  161. 

*  Merritt  v.  Earle,  31  Barb.  38.  8  Newstadt  v.  Adams,  6  Duer,  43. 


888  PLEADING.  [book   III. 

to  Nevada,  and  having  a  warehouse  at  the  latter  place  ;  that  on 
this  day  the  plaintiff's  goods  were  delivered  to  the  defendants  at 
Chicago,  to  be  transported  to  Nevada,  as  per  receipt,  &g.  .  .  . 
and  that  said  goods  were  duly  transported  by  the  defendants  to 
their  said  warehouse,  in  Nevada,  and  were  therein  so  carelessly 
and  negligently  kept,  that  the  aforesaid  articles  were  entirely  lost 
and  destroyed,  and  the  defendants  both  utterly  failed  and  refused 
to  deliver  the  same,  &c.  Held,  that  defendants  were  charged 
as  warehousemen  and  not  as  common  carriers.^ 

§  30.  The  answer  to  a  petition,  to  recover  for  a  loss  by  a  jetti- 
son of  goods  by  the  carrier,  must  show  all  the  facts  necessary  to 
justify  him.  The  averment,  that  the  loss  occurred  by  the  dangers 
of  the  river,  is  but  a  conclusion  of  law,  and  not  sufficient.  But 
if  a  justification  is  alleged  in  general  terms,  which  embrace  the 
particular  facts  necessary  to  be  proved,  and  is  held  good  on 
demurrer,  and  the  parties  go  to  trial  upon  that  issue,  and  the 
evidence  conduces  to  prove  facts,  upon  which  the  jury  might  have 
found  for  the  defendants,  and  a  judgment  thereon  would  have 
been  sustained  ;  the  defendants  are  not  precluded  from  question- 
ing the  judgment  against  them,  on  the  ground  of  errors  in  the 
trial,  which  may  have  prevented  a  verdict  in  their  favor.^ 

§  30  a.  An  answer,  on  the  part  of  an  express  company,  that  it 
had  no  knowledge  or  information  sufficient  to  form  a  belief,  as  to 
the  alleged  neglect  and  wrongful  acts  of  its  servants  or  agents,  is 
sufficient  to  put  the  plaintiff  upon  proof  of  these  allegations,  and 
let  in  rebutting  evidence.^ 

§  31.  To  an  action  on  the  case,  in  which  the  declaration  stated 
that  the  defendants  were  common  carriers,  and  that  they  received 
from  the  plaintiff,  as  such,  a  package,  to  be  safely  carried  and 
delivered  for  him  at  a  place  mentioned,  and  that  they  did  not 
safely  carry  the  package,  but  through  their  negligence  it  was 
lost:  the  defendants  pleaded,  with  a  verification,  that,  at  the 
time  they  received  the  package,  they  gave  the  plaintiff  notice 
that  they  would  not  be  responsible  for  packages  of  a  particu- 
lar description,  under  which  this  particular  package  fell,  unless 
their  contents  were  declared  ;  that  the  contents  of  this  package 
were  not  declared ;  and  that  the  defendants  did  not  consent  to 
be  responsible  contrary  to  the  terms  of  such  notice.     Held,  an 

•  Porter  v.  Cliicago,  20  Iowa,  73.  3  Boorman  v.  American,  21  Wis.  152. 

2  Bentley  v.  Bustard,  16  B.  Mon.  643. 


CH.    XT.]      PLEADING   IN   CASE   OP   LANDLORD,   HUSBAND,   ETC.  389 

argumentative  denial  of  the  bailment  as  alleged  in  tlie  declara- 
tion.^ 

§  32.  It  is  no  defence,  in  a  landlord  and  tenant  process,  that 
the  plaintiff  has  taken  possession,  unless  pleaded  puis  dar.  con.; 
even  though  it  appear  in  an  agreed  statement.^ 

§  33.  First  count,  that  the  plaintiff  was  the  owner  of  goods, 
which  had  been  let  to  hire  to  T.  for  a  term,  and  that  the 
defendant  sold  the  goods  and  dispersed  them,  so  as  to  prevent 
their  being  followed  or  found,  whereby  the  plaintiff  was  injured 
in  her  reversionary  estate.  Second  count,  similar  to  the  first, 
except  that  it  alleged  that  the  goods  were  let  to  T.  "  to  be  used 
in  a  certain  house,  and  not  otherwise  or  elsewhere  ;  that  T.  had 
the  use  of  the  goods,  subject  to  the  expiration  of  the  term,  and 
subject  to  the  determination  of  the  term  by  the  violation  of  the 
terms  thereof."  Pleas,  that  the  defendant  seized  and  took  and 
sold  the  goods,  not  in  market  overt,  but  as  sheriff  under  a  writ  of 
f.  fa.  against  T.,  and  that  the  plaintiff  had  not  sustained,  and 
would  not  sustain,  any  damages  by  reason  of  the  premises.  Held, 
as  the  damages  sustained  by  the  plaintiflf  were  the  foundation  of 
the  action,  the  pleas  were  an  answer.^ 

§  34.  To  an  action  of  trespass,  for  breaking  and  entering  the 
plaintiff's  house  and  seizing  his  goods,  the  defendant  pleaded, 
that  one  Thomas  held  a  house  as  tenant  to  one  Payne,  at  a  certain 
rent;  that  tlie  rent  was  in  arrear;  that  the  said  goods,  being  the 
goods  of  Thomas,  were  fraudulently  and  clandestinely  conveyed 
by  him  from  his  house  to  prevent  a  distress,  and  were,  with  the 
plaintiff's  consent,  placed  in  the  plaintiff's  house ;  whereupon  the 
defendant,  as  bailiff  of  Payne,  and  by  his  command,  seized 
the  goods  as  a  distress.  Replication,  that  the  said  goods  were  not 
the  goods  of  Thomas,  nor  were  they  fraudulently  and  clandestinely 
conveyed  away  by  Thomas  to  prevent  a  distress.  It  seems  the 
replication  is  not  multifarious,  but  a  good  answer.* 

§  35.  In  a  complaint  for  crim.  con.,  it  is  a  sufficient  averment 
of  marriage,  that  the  female  was  the  wife  of  the  plaintiff  at  the 
time  when  the  act  was  committed.^ 

1  Crouch  V.  The  London,  &c.,  14  Eng.  <  Thomas  v.  Watkins,  14  Eng.  L.  & 

L.  &  Eq.  498.  Eq.  48'J. 

'i  Hayden  v.  Alicarn,  9  Gra.v,  4^.8.  5  Hanck  v.  Grantliam,  22  Ind.  53. 

3  Tancred  v.  Allgoud,  4  Ilurl.  &  Nor. 
438. 


390  PLEADING.  [book   III.   CH.   XI.] 

§  36.  Want  of  virtue  in  the  plaintiff  and  his  wife,  is  not  a 
defence.  But,  without  being  pleaded,  it  may  be  proved  in  miti- 
gation of  damages.^ 

§  37.  An  action  for  seduction  of  a  daughter,  brought  in  the 
form  of  trespass  to  the  dwelling-house  of  the  plaintiff,  need  not 
allege  a,  per  quod  serv.,  &c? 

§  38.  A  promise  of  marriage,  as  the  means  of  seduction,  may- 
be alleged  in  the  declaration.^ 

§  39.  To  an  action  for  seduction,  with  promise  of  marriage,  an 
answer  of  the  infancy  of  the  defendant  is  bad  on  demurrer.^ 

1  Harrison  v.  Price,  22  Ind.  165.  »  Lee  v.  Hefley,  21  ib.  99. 

'-'  Donohue  v.  Dyer,  23  Ind.  521.  *  Lee  v.  Hefley,  ib.  98. 


[book   IV.    CH.    I.]       GENERAL    RULES   OF   EVIDENCE. 


391 


BOOK    IV. 

EVIDENCE   IN   ACTIONS    FOR   TORTS. 

CHAPTER   I. 

GENERAL   RULES  OF  EVIDENCE. 


1.  Proof  of  the  affirmative  of  the  issue; 
exceptions  to  the  general  rule. 

3.  Afiirmntive  jirnof  of  wrong  or  illegal- 
ity; fraud:  official  neglect  or  misconduct,  &c. 

5.  Proof  as  to  possession. 

7.  Burden  of  proof;  to  what  it  extends. 

8.  Change  in  the  burden  of  proof. 


9.  Nonsuit  for  want  of  proof. 

10.  Presumptions. 

11.  Presumption  of  innocence  as  to  official 
conduct;  possession,  &c. 

12.  Reasoniible  duubt. 
14.  ]\liscellaneous. 

16.  Rebutting  evidence. 


§  1.  It  is  the  general  rule  of  evidence,  that  "  the  obligation  of 
proving  any  fact  lies  upon  the  party  who  substantially  asserts  the 
affirmative  of  the  issue.  It  is  generally  deemed  sufficient,  where 
the  allegation  is  affirmative,  to  oppose  it  with  a  bare  denial,  until 
it  is  established  by  evidence."  ^  (a) 

§  2.  There  are,  however,  some  exceptions  to  this  rule.  (6) 
1  1  Greenl.  Evi.  147,  §  74.     See  People  v.  Third,  &c.,  45  Barb.  03. 


(a)  The  burden  of  proof  is  upon  a  party 
who  seeks  to  show  that  the  property  in 
controversy  is  not  of  sufficient  value  to 
give  the  court  jurisdiction.  The  Stella, 
Law  Rep.  1  Adm.  &  Ecc.  340. 

The  burden  of  the  issue  rests  upon  tlie 
party  who  would  be  defeated  if  no  proof 
were  offered.     Kent  v.  White,  27  Ind.  3i)0. 

One  who  alleges  damage  to  goods  must 
show  damage,  and  its  extent.  Farley  v. 
Vanwickle,  rj  La.  An.  9. 

Negative  testimony,  where  there  is  a 
conflict  of  evidence,  may  have  the  force 
of  positive  evidence.  Renwick  v.  N.  Y., 
36  N.  Y.  132. 

Issues  of  fact  may  be  proved  by  nega- 
tive evidence.  It  is  error  to  instruct  the 
jury  otherwise.  Duffield  v.  Delancey,  36 
111.  258. 

Negative  evidence  may  counterbalance 


the  positive  testimony  of  a  single  witness. 
Campbell  I'.  New  England,  USMass.  381. 

Affirmative  evidence  is  entitled  to 
greater  weight  than  negative  evidence  in 
the  same  case.  Frantz  v.  Lenhart,  56 
Penn.  365.     See  p.  392,  n. 

In  an  action  against  a  bank  to  recover 
the  amount  of  a  counterfeit  bank-bill 
alleged  to  have  been  jiaid  out  to  the  plain- 
tiff by  the  bank,  the  defendant  may  prove 
that  the  bill  was  never  received  into  the 
bank  by  the  receiving  teller  ;  and,  by  the 
note-teller  for  the  preceding  year,  that 
it  was  not  received  into  the  bank  by  him. 
Union  r.  Baldenwick,  45  111.  375. 

(h)  "The  general  statement  that  the 
party  who  alleges  the  affirmative  shall 
prove  it,  will  not  much  aid  us.  The  point 
will  often  arise,  who  has  the  affirmative." 
Per  Dewey,  J.,  Pond  i'.  Gibson,  5  Allen, 


392  EVIDENCE.  [book    IV. 

Where  the  plaintiff  grounds  his  right  of  action  on  a  negative 
allegation,  the  establishment  of  which  is  an  essential  element  in 
his  case,  he  is  bound  to  prove  it.^  Thus,  in  the  action  for  mali- 
cious prosecution,  the  want  of  probable  cause,  though  a  negative 
allegation,  must  be  affirmatively  proved.^  So  where  the  plaintiff 
complained  tiiat  the  defendants,  charterers  of  his  ship,  put  on 
board  a  highl}'^  inflammable  and  dangerous  article,  without  notice 
to  the  master  or  others  in  charge  of  the  ship,  whereby  it  was 
burned;  held,  the  latter  averment,  though  negative,  must  be 
affirmatively  proved.  The  court  remark :  "  That  the  declaration 
.  .  .  imputes  to  the  defendants  a  criminal  negligence,  cannot 
well  be  questioned.  In  order  to  make  the  putting  on  board 
wrongful,  the  defendants  must  be  conusant  of  the  dangerous 
quality  of  the  article  .  .  .  and,  if  being  so,  they  yet  gave  no 
notice,  considering  the  probable  danger  thereby  occasioned  to  the 
lives  of  those  on  board,  it  amounts  to  a  species  of  delinquency 
.  .  .  for  which  they  are  criminally  liable."^  So  an  allegation, 
that  a  theatre  was  not  duly  licensed ;  or  goods  not  legally  im- 
ported ;  or  of  non-compliance  with  the  act  of  uniformity ;  or  of 
not  taking  the  sacrament ;  must  be  affirmatively  proved,'^  So,  in 
an  action  against  an  officer  for  false  return,  it  is  presumed  in  his 
favor  to  be  true,  and  the  plaintiff  must  prove  it  to  be  false,  though 
negative.^  So  in  a  suit  to  recover  double  the  value  of  goods  dis- 
trained for  rent,  when  no  rent  is  due,  under  Indiana  Rev.  Sts. 
1843,  c.  45,  §  220,  the  averment  that  no  rent  was  due  is  material, 
and,  though  negative,  the  burden  is  on  the  plaintiff  to  prove  it.^ 
So  in  an  action  for  removal  of  a  gate,  across  the  plaintiff's 
way  to  another  place  in  it,  there  was  evidence  of  an  agree- 
ment between  the  plaintiff  and  defendant  that  it  should  be  kept 

1  Nash  V.  Hall,  4  Ind.  444.  Sissons  v.  Dixon,  5  B.  &  C.  758 ;  Powell 

-  Purcell  V.  Macnamara,  1  Camp.  199  ;  v.  Milburn,  3  Wils.  355 ;  Rex  v.  Hawkins, 

Gibson  ?>.  Waterhonse,  4  Greenl.  226.  10  E.  211. 

3  Williams  v.  East,  &e.,  3  E.  192;  per  5  Clark  v.  Lyman,  10  Pick.  47  ;  Boyn- 
Ld.  Ellenborougli,  C.  J.,  ib.  200.  ton  v.  Willard,  ib.  169. 

4  Rodwell  V.  Hedge,  1  C.  &  P.  220 ;  «  Smith  v.  Downing,  6  Ind.  374. 

20;  overruling  Emmons  t;.  Haywood,  11  positive  and  negative  testimony.     In  a  late 

Cusli.  48,  so  far  as  that  case  decides  that  case,  in  an  action  for  damages  occasioned 

the  burden  of  proving    a  defence  under  by  collision  with  cars  at  a  crossing,  posi- 

the  Statute  of  Limitations  is  upon  the  de-  tive  evidence  that  the  bell  was  rung  and 

fendant.  whistle  sounded,  was  held  entitled  to  more 

weight   than    the   negative    evidence    of 

In  this  connection,  we  may  allude  to  the  those  who  testified  that  they  did  not  hear 

question   which    frequently    arises,  with  the  bell  or  whistle.     Chicago,  &c.  v.  Still, 

reference  to  the  comparative  weight  of  19  111.  499.     See  p.  391,  n.  (a). 


CH.    I.]  GENERAL   RULES   OP   EVIDENCE.  393 

in  its  original  place  by  tlie  defendant,  and  that  tlie  plaintiff  should 
keep  it  in  repair.  Pleld,  the  plaintiff  was  not  bound  to  prove 
that  he  had  kept  it  in  repair,  but  the  defendant  must  prove  the 
contrary.^ 

§  2  a.  And  where  the  plaintiff  has  established  a  primd  facie 
case,  the  defendant  is  bound  to  meet  it,  though  by  proof  of  a 
negative.  Thus,  in  an  action  for  the  infringement  of  a  patent, 
the  burden  of  proof  is  upon  the  defendant,  to  show  that  the  pat- 
entee was  not  the  inventor  of  what  he  patented.- 

§  3.  In  general,  an  allegation  of  wrong  or  illegality  must  be 
affirmatively  proved,  (a)  Thus,  in  an  action  for  injury  arising 
from  an  accident,  evidence  of  tlie  mere  happening  of  the  accident 
is  not  enough,  without  affirmative  evidence  of  negligence,  to  pre- 
vent a  nonsuit. 3  Even  in  an  action  against  a  railroad  company 
for  negligence,  thougli  the  rule  of  liability  is  perhaps  more  strict 
than  in  ordinary  cases,  the  occurrence  of  an  injury,  not  necessar 
rily  importing  negligence,  if  it  be  prima  facie,  is  not  conclusive 
proof  of  such  negligence.*  (b)  Thus  a  railroad  is  only  liable  for 
such  injuries  as  result  from  its  mismanagement,  neglect,  or  want 
of  due  care  and  attention ;  and  the  burden  of  proof  is  on  the 
plaintiff,  a  passenger,  though  run  over.^  So,  in  an  action  against 
a  railroad  company  for  killing  cattle,  the  plaintiff  should  negative 
by  proof  that  there  was  a  public  crossing  whore  the  kihing  oc- 
curred ;  and  should  show  that  the  company  was  bound  to  fence  at 
that  point. ^  So,  in  an  action  against  a  railroad  for  injury  to  goods 
through  its  negligence,  the  plaintiff  must  prove,  either  directly 

1  Erb  V.  Erb.,  50  Penn.  388.  Nor.  842;  Robinson  v.  Fitchburg,  &c.,  7 

2  Pitts  V.  Hall,  2  Blatch.  Ct.  229.  Grav,  92. 

3  Haramack  v.  White,  8  Jur.  (N.  S.)  5  Mitdiell  v.  Western,  30  Oa.  22. 
796.  «  Oiiio,  &c.  V.  Taylor,  27  111.  207  ;   IIU- 

*  Bird  V.  Great  N.  R.   Co.  4  Hurl.   &     nois,  &c.  v.  Williams,  ib.  48. 

(a)  In  a  suit  for  tithes  in  tlie  spiritual  the  burden  of  proof  nnd  the  tvfiqht  of  evi- 
court,  the  defendant  pleaded,  that  the  deuce.  The  former  remains  on  the  party 
plaintiff  hail  not  read  the  .\XXIX.  Arti-  affirming  a  fact  in  support  of  his  case,  and 
cles ;  and  the  court  put  tlie  defendant  to  does  not  chaiifxe  ;  the  hitter  chancres  from 
prove  it,  tlioutih  a  neixative.  Whereupon  one  side  to  the  other  during  the  trial,  ac- 
he moved  the  court  for  a  proliihition,  cordinj;  to  the  nature  and  strength  of  the 
which  was  denied  ;  for  in  this  case  the  law  proofs  offisred  for  or  against  the  main  fact 
will  presume  that  a  person  lias  reail  the  to  be  established. 

Articles,  for  otherwise  he  is  to  lose  his  ben-         (6)  In    an    action   against   a   railroad, 

efice  ;    ami   wlien    the  law  presumes  the  where  there  is  a  conflict  of  testimony,  a 

affirmative,    then    the    negative  is    to  be  jury  is  justified  in  giving  more  weight  to 

proved.      Monke  r.    Butler,  1  Rol.  Rep.  testimony  of  the  negligcnci'  of  the  engi- 

83  ;  cited  in  3  K.  199.  neer.  tiian  to  that  of  the  engineer  himself 

In  the  case  of  Central,  &c.  r.  Butler,  2  and  the servantsofthecompany  generally. 

Gray,   132,  a  distinction  is  made  between  Chicago  v.  Triplelt,  38  111.  482. 


394:  EVIDENCE.  [book  IV. 

or  by  circumstances,  that  they  were  in  good  condition  when 
delivered  to  the  defendants,  not  merely  that  they  were  injured 
when  delivered  by  them.  Though,  in  a  case  of  connecting  rail- 
roads, proof  of  condition  of  the  goods  on  delivery  to  the  first  road 
is  sufficient.^  (a) 

§  4.  The  same  rule  is  applied  in  cases  of  alleged  fraud.  (5) 
Thus,  where  an  actual  purchase,  payment,  and  possession  are 
shown  on  the  part  of  a  vendee,  the  burden  of  proof  is  on  the  party 
who  seeks  to  impeach  his  title  on  the  ground  of  fraud.-  So  wliere 
a  defendant,  seeking  to  avoid  a  deed  of  trust,  avers  in  his  answer, 
that  it  was  made  to  hinder,  delay,  and  defraud  creditors,  and 
therefore  void,  the  burden  of  proof  rests  on  him.^  So  the  fact, 
that  a  man  with  his  family  resides  upon  land  claimed  by  his  father- 
in-law,  and  cultivates,  uses,  and  occupies  it,  paying  taxes  in  his 
own  name,  is  not  evidence  that  he  is  the  owner,  and  that  the  title 
is  kept  out  of  him  to  defraud  his  creditors.^  So  the  burden  of 
proof  is  upon  the  party  seeking  to  avoid  a  contract  upon  the 
ground  that  it  was  induced  by  fraudulent  representations  :  ^  as  iu 
case  of  an  action  upon  a  life-insurance  policy,  and  a  defence  of 
false  representations  as  to  the  habits  of  the  insured.^  Though 
the  burden  lies  on  a  defendant,  who  admits  the  false  representa- 
tions which  form  the  basis  of  the  suit,  but  sets  up  other  facts  in 

1  Smith  )).  N.  Y.  &c.,  43  Barb.  225.  *  Cameron  v.  Savage,  37  III.  172. 

2  Salmon  I'.  Orser,  5  Duer,  511 ;  Martin  ^  Oaks  v.  Harrison,  2-4  Iowa,  179; 
V.  Driimm,  12  La.  An.  494;  Lesseps  v.  Grimmell  r.  Warner,  21  Iowa,  11 ;  Strong 
"Weeks,  ib.  739.  v.  Place,  4  Rob.  (N.  Y.)  385. 

3  Hempstead  v.  Johnston,  18  Ark.  123  ;         ''  New  York  v.  Traham,  2  Duv.  506. 
Sutter  V.  Lackman,  39  Mis.  91. 

(a)  When  a  collision  occurs  between  a  tice,  and  neglect  were  not  proved.     Held, 

steamer  and  a  sailing  vessel,  which  is  beat-  the  allegation  of  the  cause  of  action  was 

ing  to  windward  in  a  narrow  channel,  the  "  unproven  "    in    its    "  entire  scope   and 

burden  of  proof  is  on  the  steamer  to  show  meaning,"  as  required  by  §§  170,  173,  of 

some  fault  in  the  management  of  the  sail-  the  (N.  Y.)  Code.      Rosebrooks  v.  Dins- 

ing  vessel.     The  Empire  State,  1  Bene-  more,  4  Rob.  672. 

diet,  D.  C.  57.  (b)  But  see  Smit  v.  People,  15  Mich.  497. 

In  an  action  for  goods  shipped  for  the  See  also  Jordan  v.  Dobson,  3  Abb.  (U.  S.) 
plaintiff  by  the  defendants  and  alleged  to  398  ;  Thompson  v.  Wharton,  7  Bush,  563. 
be  lost  by  their  negligence,  the  complaint  Where  a  person,  after  having  received 
alleged,  that,  before  tlieir  arrival  at  their  the  whole  benefit  and  advantage  of  a  con- 
place  of  destination  (Harper's  Ferry),  the  tract,  conies  into  court  and  alleges  his 
consignee  having  left  that  place,  the  de-  own  turpitude,  and  invokes  the  law  of 
fendants  were  directed  to  forward  them  morality  to  relieve  himself  of  the  e.xecu- 
to  the  same  consignee  at  another  place  tion  of  his  part  of  the  contract,  and  by 
(Washington).  It  was  proved,  that,  on  that  means  to  enrich  himself  at  tlie  ex- 
arrival  of  a  portion  of  tlie  goods  at  a  point  pense  of  the  other  part}' ;  he  must  adduce 
about  a  mile  from  the  first  destination,  the  evidence  so  complete  that  it  carries  with 
consignee  demanded  the  goods  of  an  it  -conviction  with  all  the  power  of  de- 
agent  of  the  defendants,  who  refused  to  monstration.  Weaver  v.  Aufour,  30  La. 
deliver  them.     The  alleged  direction,  no-  An.  1. 


CH.    I.]  GENERAL    RULES   OF    EVIDENCE.  395 

justification.^  And  tlie  testimony  of  a  single  witness  called  to  \ 
prove  fraud,  who  testified  as  to  a  conversation  in  which  he  did  not 
participate,  when  his  attention  was  not  requested  or  particularly- 
attracted  to  it,  should  be  received  with  caution,  and  subjected  to  y 
severe  scrutiny .^  So  where,  by  the  terms  of  a  building  contract, 
if  the  contractor  failed  to  comply  therewith,  the  engineer  might 
declare  it  forfeited ;  and,  on  the  engineer's  making  such  declara- 
tion, the  contractor  brought  suit,  alleging  that  it  was  wrongfully 
made:  held,  the  proof  of  the  allegation  devolved  upon  him.'^  So, 
in  an  action  to  recover  the  price  of  intoxicating  liquors,  the  bur- 
den of  proof  is  upon  the  defendant  to  show  that  they  were  unlaw- 
fully sold.  The  court  remark  :  "  There  is  no  legal  presumption 
that  the  sale  is  unlawful,  and  there  should  hardly  be,  in  favor  of 
a  defendant  who  has  himself  joined  in  the  contract.  As  against 
the  Commonwealth,  the  legislature  have  required  that  the  defend- 
ant in  a  criminal  prosecution  shall  prove  the  authority  under 
which  he  acts,  when  charged  with  a  violation  of  the  statutes  ;  but 
they  have  imposed  no  such  obligation  upon  parties  who  seek 
the  enforcement  of  contracts."  ^  So,  where  goods  are  seized  for 
an  alleged  forfeiture  under  the  revenue  laws,  the  seizure  is  pre- 
sumed unlawful  until  proved  lawful.^  So  where  certain  liquors, 
seized  by  an  officer  of  the  law  and  held  by  him,  a  portion  having 
been  condemned  as  forfeited,  were  all  illegally  seized  by  another 
officer  under  a  second  warrant;  held,  in  a  suit  against  the  latter, 
the  burden  was  upon  the  former  to  show  the  actual  extent  of 
his  damages,  taking  into  consideration  the  forfeiture  of  a  part  of 
the  property.^  So  a  party,  complaining  of  a  breach  of  official 
duty  in  the  clerk  of  a  court,  must  show  every  fact  necessary  to 
constitute  such  breach.  Damages  will  not  be  presumed.'  So 
every  presumption  is  in  favor  of  the  regularity  of  the  proceed- 
ings of  probate  courts,  they  being  placed  on  the  footing  of  supe- 
rior courts;  and,  nothing  appearing  in  the  record  to  the  contrary, 
an  order  of  sale  and  conveyance  of  a  slave  belonging  to  minors 
will  be  presumed  to  have  been  authorized,  on  a  sufficient  show- 
ing, and  for  the  benefit  of  the  minors.^  So,  in  Massachusetts,  if 
the  use  of  steam-engines  and  furnaces  has  been  regulated  by  an 

1  Winans  i;.  Winans,  4  Green  (N.  J.),  *  Aitclieson  v.  Maildock,  Peake,  162. 
220.                                                                              6  Jones  v.  Fletcher,  41  Maine,  254. 

2  Hall  v.Layton,  IG  Tex.  202.  7  Crai^  v.  Adair.  22  Geo.  ;{73. 

3  State  V.  MeCiinley,  4  Ind.  7.  ^  Kedmoiid  v.  Anderson,  18  Ark.  449. 
*  Wilson  V.  Melvin,  13  Gray,  73. 


396 


EVIDENCE. 


[book  IV. 


order  of  the  municipal  authorities,  duly  made  and  recorded,  under 
St.  1845,  c.  197,  the  burden  is  on  a  party,  who  complains  of 
the  works  as  a  nuisance,  to  prove  non-compliance  with  the  terms 
of  the  order,  or  an  unlawful  or  improper  use  of  the  works. ^ 

§  5.  Upon  a  similar  principle,  the  burden  of  proof  is  on  the 
party  claiming  title  by  adverse  possession  against  one  showing  a 
clear  documentary  title,  and  he  must  prove  such  possession  be- 
yond a  reasonable  doubt.^  (a)  Whenever  the  possession  of  one 
person  is  shown  to  have  once  been  in  subordination  to  the  title  of 
another,  it  will  not  be  adjudged  afterwards  adverse  to  such  title, 
without  clear  and  positive  proof  of  its  having  distinctly  become 
S0.3  (b) 


1  Call  V.  Allen,  1  Allen,  137. 

2  Rowland  v.  Updike,  4  Dutch.  101 ; 
Baldwin  v.  Buffalo,  35  N.  Y.  375. 

(a)  Generally,  a  person  who  takes  prop- 
erty from  a  mere  temporary  bailee  must 
give  it  up  to  the  owner,  upon  such  proof 
as  would  suffice  against  the  bailee.  Pugh 
V.  Calloway,  10  Ohio  (N.  S.),  488. 

Possession  is  prima  facie  evidence  of 
title  to  personal  property.  Vining  v. 
Baker,  53  Maine,  544. 

Subject,  however,  to  some  exceptions. 
New  York  v.  Lent,  51  Barb.  19. 

The  possession  of  letters,  addressed  to 
the  given  name  of  the  possessor,  is  prima 
facie  evidence  of  his  title  and  ownership, 
especially  wliere  they  contain  strong  in- 
ternal evidence  that  they  were  addressed 
to  and  intended  for  him.  Tefft  v.  Marsh, 
1  West  Va.  38. 

(b)  The  possession  of  land  will  be  pre- 
sumed to  be  with  the  legal  title.  Miller 
V.  Fraley,  23  Ark.  735. 

Where  the  plaintiff  has  established  his 
ownership  up  to  a  particular  date,  the 
burden  is  on  the  defendant,  or  those 
through  whom  he  holds,  to  show  a  legal 
divesture.  Sullivan  v.  Goldman,  19  La. 
An.  12. 

Where  tracts  lying  within  the  bounds 
of  a  grant  under  which  the  plaintiff  claims 
are  excepted  by  it,  the  burden  of  proving 
their  locality,  and  that  the  defendant's 
possession  is  within  the  bounds  of  the 
excepted  tracts,  is  upon  the  latter.  Bow- 
man V.  Bowman,  8  Head,  47. 

An  owner  in  possession  is  presumed  to 
hold  under  his  fee,  until  it  is  shown  that 
he  holds  under  an  adverse  estate.  Tinney 
V.  Wolston,  41  III.  215. 

So  the  law  presumes,  that  a  tenant  who 
occupies  under  a  disseisor  continues  after 
his  landlord's  death  to  occupy  under  his 
heirs.     Currier  v.  Gale,  9  Allen,  522. 


3  Hood  V.  Hood,  2  Grant's  Cas.  229. 


When  a  claim  is  based  upon  an  aban- 
donment or  forfeiture  by  the  defendant, 
such  forfeiture  or  abamlonnient  must  be 
established  by  the  plaintiff.  Oreamuno 
V.  Uncle  Sam.  &c.,  1  Nev.  215. 

Possession  will  not  be  presumed  wrong- 
ful. Where  the  rights  of  two  hostile 
parties  stand  upon  mere  possession,  not 
yet  ripened  into  a  perfect  title,  he  who 
has  the  prior  possession  has  the  best  right, 
unless  he  abandon  and  surrender  it  to  the 
adverse  party.  Austin  v.  Bailey,  37  Vt.219. 

B  made  an  unsealed  instrument,  pur- 
porting to  convey  to  A  for  life,  with 
remainder  over,  certain  lands  and  person- 
alty, and  reciting  that  the  lands  had  been 
conveyed  by  A  to  B.  A  accepted  the 
conveyance,  had  it  recorded,  and  for 
twenty  years  treated  the  personalty  as 
held  under  it.  A  had  been  the  owner  of 
the  lands,  had  always  had  them  in  his 
possession,  and  continued  in  possession 
until  his  death.  Held,  A's  title  should  be 
referred  to  the  unsealed  instrument  under 
which  he  had  acquired  it  by  adverse  pos- 
session, and  that  his  heirs  could  not 
dispute  the  right  of  the  remainder-men. 
Anderson  v.  Rhodus,  12  Rich.  104. 

A  father  sent  a  slave  to  a  son  by  the 
son's  child,  "  a  little  boy."  There  were 
no  witnesses  to  the  gift.  The  son  used 
and  controlled  the  slave  as  his  own,  and 
paid  taxes  on  her.  Twenty-two  years 
afterward,  the  father,  then  eighty-five 
years  old,  testified,  in  a  suit  for  the  slave 
by  a  purchaser  at  a  sale  under  an  execu- 
tion against  the  son,  that  be  "  sent  the 
slave  as  a  gift  to  his  son's  wife  and 
children."  Held,  the  evidence  was  not 
sufficient  to  defeat  the  plaintiff's  title. 
Lemon  v.  Wright,  31  Ga.  317. 


CH.    I.]  GENERAL    RULES   OF    EVIDENCE.  397 

§  6.  It  is  a  somewhat  analogous  rule,  that  he  who  avers  a  fact, 
in  excuse  of  his  own  misfeasance,  must  prove  it.^ 

§  7.  A  party  having  the  burden  of  proof  is  bound  to  prove  each 
essential  circumstance,  in  the  same  manner  as  if  the  wliole  issue 
had  rested  on  it.^  And  the  jury  cannot  find  for  the  plaintiff  on 
the  ground  of  preponderance  of  evidence,  unless  tlie  evidence  is 
sufficient  to  prove,  to  tlieir  satisfaction,  the  truth  of  all  the  facts 
upon  which  the  right  to  recover  depends.'^ 

§  8.  As  we  have  seen  (§  1),  "the  general  rule  is,  that  things 
once  proved  to  have  existed  in  a  particular  state,  are  to  be  pre- 
sumed to  have  continued  in  that  state  until  tiie  contrary  is  estab- 
lished by  evidence  either  direct  or  presumptive."'*  But,  if  the 
plaintiff  establishes  a  primd  facie  case,  the  burden  of  proof  is 
thereby  shifted,  and  he  is  entitled  to  recover,  unless  his  primd 
facie  case  is  destroyed  by  proof  from  the  defendant.^  Thus,  in  an 
action  f(jr  slander,  where  the  speaking  of  the  words  is  admitted, 
the  burden  of  proof  is  on  the  party  offering  evidence  in  justifica- 
tion or  mitigation  of  damages,  and  he  is  entitled  to  open  and  close.^ 
So  where  a  machine  sold  is  found  not  to  work  well,  the  burden  of 
proof  is  upon  the  vendor,  to  rebut  the  primd  facie  presumption 
that  the  fault  is  in  the  machine,  and  not  in  the  buyer  and  user." 
So,  where  a  railroad  agent  offered  to  pay  for  certain  cattle  killed, 
but  the  owner  thought  the  offer  too  small,  and  brought  a  suit ; 
held,  the  onus  of  disproving  negligence  was  thereby  put  upon  the 
railroad.^  So  the  burden  of  showing  probable  cause  or  belief  in 
a  trespasser,  that  the  land  on  which  a  trespass  was  committed  be- 
longed to  him,  is  on  the  defendant,  though  it  need  not  be  set  up 
in  his  plea  or  answer.^  So,  in  a  case  often  cited,  memorable  for 
its  decisive  promptness,  and  perhaps  as  striking  an  application  of 
the  maxim  *'  omnia  presumuntur  contra  spoliatorem,'^  as  can  be 
found  in  the  books  ;  the  plaintiff,  a  chimney-sweeper's  boy,  found  a 
jewel  and  carried  it  to  the  defendant's  shop  (who  was  a  goldsmith) 
to  know  what  it  was,  and  delivered  it  into  the  hands  of  the  ap- 
prentice, who,  under  pretence  of  weighing  it,  took  out  the  stones, 
and  calling  the  master  to  let  him  know  it  came  to  three  half-pence, 

1  Finn  v.  Wharf.  Co.,  7  Cal.  253.  «  Gaul  v.  Fleminf,'.  10  Ind.  253. 

2  Hendcnson  v.  State,  14  Tex.  503.  "^  Parker  i;.  llemlrie,  3  Clarke  (Iowa), 

3  Duncan  v.  Watson,  28  Miss.  187.  263. 

*  Per  Johnson,  J.,  Smith  v.  N.  Y.  &c.,        »    Georgia,  &c.   Co.  v.  Willis,  28  Geo. 
43  Barb.  228.  317. 

*  Ogletree  v.  State,  28  Ala.  693.  9  Walther  v.  Warner,  20  Mis.  143. 


398  EVIDENCE.  [book  IV. 

tho  master  offered  the  boy  the  money,  who  refused  to  take  it,  and 
insisted  to  have  the  thing  again ;  whereupon  the  apprentice  deliv- 
ered him  back  the  socket  without  the  stones.  In  trover  against 
the  master,  as  to  the  value  of  the  jewel,  several  of  the  trade  were 
examined  to  prove  what  a  jewel  of  the  finest  water  that  would  fit 
the  socket  would  be  worth  ;  and  the  Chief  Justice  (Lord  Parker) 
directed  the  jury,  that  unless  the  defendant  did  produce  the 
jewel,  and  show  it  not  to  be  of  the  finest  water,  they  should  pre- 
sume the  strongest  against  him,  and  make  the  value  of  the  best 
jewels  the  measure  of  their  damages  ;  which  they  accordingly 
did.^  So  every  imprisonment  of  a  man  is  primd  facie  a  trespass  ; 
and,  in  an  action  to  recover  damages  therefor,  if  the  imprison- 
ment is  proved  or  admitted,  the  burden  of  justifying  it  is  on  the 
defendant.^  So,  in  trespass  brought  by  the  owner  of  land  against 
a  railroad  corporation,  the  plaintiff  having  proved  his  title,  the 
entry  of  the  defendants,  and  construction  of  the  road  upon  the 
land ;  they  are  bound  to  prove  that  the  land  is  covered  by  their 
authorized  location  of  the  road.^  So,  in  the  case  of  common 
carriers  by  water,  when  the  damage  is  established,  the  burden  lies 
upon  them  to  show,  that  it  was  occasioned  by  one  of  the  perils 
from  which  they  are  exempted  in  the  contract  of  shipment  or  bill 
of  lading.^  So,  in  a  suit  against  an  administrator  for  a  sum  of 
money  deposited  with  his  intestate,  proof  that,  at  the  time  of  his 
death,  the  deceased  had  in  his  house  a  bag  in  which  was  a  purse 
containing  the  exact  sum  claimed,  both  labelled  in  the  hand- 
writing of  the  deceased  with  the  name  of  the  plaintiff,  and  that 
it  was  delivered  to  the  administrator,  makes  a  primd  facie  case 
for  the  plaintiff.^  So  where  a  statute  provides  that  no  person 
shall  recover  damages  from  a  town  for  destruction  of  his  property 
by  a  mob,  if  it  shall  appear  that  the  destruction  was  caused  by 
his  illegal  or  improper  conduct ;  if  the  evidence  of  circumstances 
indicating  such  conduct  is  conllicting,  the  burden  of  proof  is  on 
a  plaintiff,  to  exculpate  himself  by  a  preponderance  of  evidence.^ 
So  in  an  action  against  an  assessor  for  imprisonment,  for  non- 
payment of  a  school-district  tax,  claimed  to  be  illegal  for  want  of 
legal  districts ;  the  arrest  being  admitted  or  proved,  the  burden 
is  on  the  defendant,  to  prove  a  legal  districting  of  the  whole  town 

1  Armory  v.  Delamirie,  1  Str.  505.  *  Steamer Niagarai;.  Cordes, 21  How.  7. 

2  Per  Metcalf,  J.,  Bassett  i'.  Porter,  10  ^  Grimes  v.  Booth,  19  Ark.  '224. 
Cush.  429.  ^  Palmer  v.  Concord,  48  N.  H.  211. 

3  Hazen  v.  Boston,  &c.,  2  Gray,  574. 


CH.    I.]  GENERAL   RULES   OP   EVIDENCE.  399 

by  territorial  limits ;  and  this,  although  de  facto  districts  had 
existed  more  than  forty  years,  and  a  lost  town-record  book  con- 
tained a  record  of  such  districting  ;  it  not  appearing  that  such 
record  was  made  after  the  statute  which  required  territorial  dis- 
tricts.^ So,  in  a  suit  by  a  creditor,  to  follow  the  assets  of  an 
estate,  against  one  standing  in  a  confidential  relation  to  an  intem- 
perate executor  ;  the  defendant  must  prove  a  fair  purchase  and 
payment  of  the  price.^  So  in  an  action  for  the  projection  of  the 
eaves  of  a  house  over  the  plaintiff' 's  land,  and  the  consequent 
flow  of  water  upon  such  land ;  the  burden  is  upon  the  de- 
fendant, of  showing  a  prescriptive  right  to  maintain  his  eaves 
as  they  are.^  So,  in  an  action  against  a  surveyor  of  highways 
for  trespassing  on  a  close  bounded  "westerly  by  the  road;" 
although  the  plaintiflF  proves  that  he  owned  and  occupied  a  close, 
in  other  respects  corresponding  to  the  declaration,  the  defendant 
is  not  bound  to  prove  that  the  locus  of  the  trespass  was  part  of 
the  highway.  The  burden  of  proof  throughout  is  on  the  plain- 
tiff. A  highway  duly  located  being  shown  along  the  same  general 
line,  the  word  road,  as  a  generic  term,  is  to  be  construed  hig-hivay.^ 
So  the  provision  of  §§  1166,  1169,  of  the  (Tenn.)  Code,  that,  when 
it  is  established  that  stock  has  been  killed  or  injured  by  a  railroad 
company,  the  onus  is  upon  the  company,  of  showing  that  the  injury 
was  the  result  of  unavoidable  accident,  is  said  to  be  simpl3'the  an- 
nouncement of  a  common-law  principle.^  So  under  a  declaration, 
alleging  that  the  defendants  are  a  corporation  owning  a  railroad,  and 
the  plaintiff  was  a  passenger  thereon,  and  the  defendants,  by  their 
agents,  assaulted  him  and  expelled  him  from  their  cars;  if  the  as- 
sault is  proved,  the  burden  of  justifying  it  rests  upon  the  defendants, 
as  in  ordinary  cases.  "  The  case  set  forth  ...  is  notliing  more 
than  an  action  for  an  assault  and  battery  upon  the  person  of  the 
plaintiff  while  he  was  a  passenger,  or  occupying  a  place  in  the 
cars.  It  does  not  present  the  question  as  it  would  have  arisen,  if 
the  declaration  had  alleged  that  the  plaintiff  was  a  passenger  .  .  . 
having  a  legal  right  to  be  carried  therein  from,  <fec.,  .  .  .  and  the 
defendants,  by  force  .  .  .  deprived  him  of  the  enjoyment  of  this 
legal  right.  In  such  case  the  burden  might  have  been  on  the 
plaintiff  to  show  .  .  .  his  legal  right."*'  So  when  the  plaintiff, 
in  an  action  to  recover  for  injuries,  received  from  cattle  which 

1  Bassett  t-.  Porter,  lOCusli.  418.     S^e  *  Holbrook  v.  McBridi-,  4  Gray,  215. 

Dickinson  v.  Hillinjjs,  4  Gray,  42.  5  Home  v.  Menii)liis,  1  Cold.  72. 

*  Barnawell  v.  Tlneadf^ili,  3  Jones,  60.  ^  St.  John  v.  Eastern  H.  Co.,  1  Allen, 

3  Ncale  V.  Seeley,  47  Barb.  314.  644 ;  per  Dewey,  J.,  ib.  545. 


400  EVIDENCE.  [book    IV. 

were  driven  through  the  street  of  a  city  in  which  he  was  law- 
fully standing,  disproves  any  fault  of  his  own;  the  burden  is 
thrown  upon  the  defendant,  to  show  that  there  was  no  fault  on 
his  side.^  So  in  an  action  unde  (Miss.)  Comp.  Stat.  c.  68,  §  3, 
against  common  carriers,  for  the  death  of  a  passenger,  occasioned 
by  the  defendants'  coach  falling  into  a  river,  the  court  may  prop- 
erly be  requested  to  charge,  that  proof  that  the  plaintiff's  intestate 
was  a  passenger  of  the  defendants,  and  that  the  accident  occasioned 
the  death,  devolves  upon  the  defendants  the  burden  of  exonerating 
themselves  by  proof  of  diligence.^  So  Sect.  13  of  the  Act  of  Con- 
gress of  July  7, 1838, "  to  provide  for  the  better  security  of  the  lives 
of  passengers  on  board  of  vessels  propelled  in  whole  or  in  part  by 
steam  "  (5  U.  S.  Stat,  at  Large,  306),  which  provides,  that  "  in 
all  suits  and  actions  against  proprietors  of  steamboats,  for  injuries 
arising  to  person  or  property  from  the  bursting  of  the  boiler  of 
any  steamboat,  or  the  collapse  of  a  flue,  or  other  injurious  escape 
of  steam,  the  fact  of  such  bursting,  collapse,  or  injurious  escape  of 
steam,  shall  be  taken  as  full  prima  facie  evidence,  sufficient  to 
charge  the  defendant,  or  those  in  his  employment,  with  negligence, 
until  he  shall  show  that  no  negligence  has  been  committed  by  him 
or  those  in  his  employment,"  applies  to  actions  against  steamboat 
proprietors  brought  under  the  Act  of  Ohio  of  March  25,  1851 
(Curwen's  St.,  1673),  "  requiring  compensation  for  causing  death 
by  wrongful  act,  neglect,  or  default."  Therefore,  in  such  an 
action,  where  the  only  matter  in  issue  in  the  pleadings  is  the 
question  of  negligence ;  it  is  error  to  charge  the  jury  "  that  it  is 
for  the  plaintiff  to  make  out  his  case  by  a  preponderance  of  tes- 
timony in  his  favor."  3  So  to  a  declaration,  for  that  the  defendant 
debauched  and  carnally  knew  the  plaintiff's  wife,  the  defendant 
pleaded  not  guilty.  Held,  that  under  this  plea  it  was  not  neces- 
sary for  the  plaintiff  to  prove  that  the  female  debauched  was  his 
wife.*  (a)     So,  in  an  action  for  slander,  the  answer  averred  among 

1  Ficken  v.  Jones,  28  Cal.  618.  3  Bradley  v.   Northern,   15   Ohio    St. 

2  McLean  v.  Burbank,  11  Minn.  277.        553. 

*  7  Ell.  &  B.  628. 

(a)  In  reply  to  the  argument,  that,  if  does  not  put  in  issue  the  fact  that  the 

the  person  debauched  be  not  the  wife  of  goods  were  the  goods  of  the  jilaiiitiff,  or 

the  plaintiflT,  no  wrong  is  done  to  him  ;  in  his  possession,  but  merely  denies  the 

Croniptoii,  J.,  said  :   "  It  might  as  well  be  defendant's  act."     7  Ell.  &  B.  628.     This 

said  that,   if  the  horse  converted  be  not  was  under  a  rule  that,  in  an  action  for 

the  plaintiff's  horse,  no  wrong  is  done  to  violation  of  a  private  right,  the  defendant 

him."     And  Lord  Campbell,  C.  J.,  upon  shall  consider  whether  he  will  deny  both 

the  same  point,  remarks  :    "  Not  guilty,  the  right  and  the  violation  of  it,  or  only 

pleaded  to  such  a  count  (for  conversion)  one  of  these. 


CH.    I.]  GENERAL   RULES    OF   EVIDENCE.  401 

other  things,  that  the  cause  of  action  did  not  accrue  within  two 
years  next  before  the  suing  out  of  tlie  plaintiff's  writ,  and  issue 
was  joined  thereon.  Pleld,  the  l)urden  of  proof  was  on  tlie  plain- 
tiff to  prove  that  the  words  were  spoken  within  the  two  years.^ 
So,  if  the  owners  of  a  privilege  in  surplus  water  bring  a  bill  in 
equity,  praying  for  relief  by  injunction  and  otherwise,  for  the 
disturbance  of  it  by  the  owners  of  the  prior  privileges,  the  bur- 
den of  proof  is  on  the  plaintiffs  to  show  that  their  rights  have 
been  invaded,  although,  since  they  acquired  their  privilege,  the 
defendants  have  lawfully  changed  the  places  and  manner  of  using 
the  water  to  which  they  are  entitled  in  priority  to  the  plaintiffs.^ 
So  in  an  action  under  (W.  Va.)  c.  98,  L.  of  1863,  against  a  railroad, 
for  causing  a  death  by  negligence,  the  fact,  that  the  plaintiff  was 
"  next  of  kin  "  to  the  decedent,  may  be  fairly  implied  from  proof 
that  the  decedent  was  the  plaintiff' 's  son,  lived  with  and  sup- 
ported her,  and  was  twenty-three  years  of  age  and  unmarried.^ 
So,  in  an  action  under  the  (111.)  Statute  for  driving  off  cattle,  it 
was  shown  that  the  defendant  was  driving  his  herd  through  a  part 
of  the  State  to  a  range  on  Salt  Creek,  when  the  plaintiff's  cat- 
tle got  into  the  drove ;  that  the  defendant  knew  they  were  in  the 
drove,  and  aided  in  branding  them  with  the  initial  letter  of  his 
own  name,  and  castrated  the  bull ;  and  that  he  drove  them  twenty- 
five  miles  from  the  usual  range,  through  a  thickly  settled  country, 
and  on  every  mile  of  his  route  there  was  a  habitation.  Held,  a 
clear  case  of  driving  cattle^  And  it  is  held  in  late  cases,  that 
the  natural  instinct  which  leads  men  in  their  sober  senses  to 
avoid  injury  and  preserve  life,  is  an  element  of  evidence  ;  ^  that  in 
all  questions  touching  the  conduct  of  men,  motives,  feeling,  and 
natural  instincts  constitute  evidence ;  and  that  any  facts  or  cir- 
cumstances relating  to  the  habits,  character,  condition,  affections, 
attachments,  prosperity,  and  objects  in  life,  which  usually  control 
the  conduct  of  men  and  are  the  motives  of  their  actions,  are  com- 
petent evidence,  from  which  may  be  inferred  the  death  of  une 
absent  and  unheard  from,  whatever  may  have  been  the  duration 
of  such  absence. "^ 

§  8  a.  A  similar  qualification  of  the  general  rule  applies  in  cases 
of  alleged  fraud.     Thus,  where  a  debtor  in  failing  circumstances 

1  Pond  V.  Gibson,  5  Allen,  19.  •»  Arnol.l  r.  Lu.llnm,  38  111.  100. 

'^  Pratt  I'.  Lamson,  6  ib.  457.  *  Allen  v.  Willard,  57  Penn.  374. 

a  Baltimore  v.  Gettle,  3  W.  Va.  37G.  «  Tisdale  v.  Connecticut,  2G  Iowa,  170. 

2G 


402  EVIDENCE.  [book   IV. 

conveyed  his  lands,  for  a  consideration  apparently  inadequate,  to 
a  creditor,  in  payment;  held,  the  burden  was  thrown  on  such 
creditor,  to  show  by  full  proof  that  such  transaction  was  bond 
Jide.^  So  where  a  father,  immediately  before  a  judgment  against 
him,  conveys  all  his  property,  subject  to  execution,  to  his  absent 
minor  son,  without  means ;  the  grantee  must  prove  that  the  pur- 
chase was  for  an  actual  consideration,  and  in  good  faitli.^  So,  in 
order  to  render  an  assignment  valid  as  against  creditors,  it  must 
be  shown  to  l)e  bond  fide  and  upon  adequate  consideration,  and  a 
mere  formal  transfer  raises  no  presumption  whatever  of  good 
faith.  And  the  mere  production  of  an  order,  confessedly  without 
consideration  as  to  two-thirds  of  its  amount,  and  showing  no  con- 
sideration on  its  face  for  the  residue,  is  clearly  insufficient  to  shift 
the  burden  of  proof  to  the  creditors.'^ 

§  8  5.  It  may  be  added,  as  a  further  modification  of  the  general 
rule  relating  to  the  burden  of  proof,  in  the  words  of  the  court 
reported  in  a  recent  case :  ''  The  general  rule  undoubtedly  is, 
that  the  burden  of  proof  is  always  upon  the  party  who  asserts 
the  existence  of  any  fact  which  infers  legal  responsibility.  But 
the  exception  is  equally  well  established,  that  the  onus  probandi 
lies  upon  the  party  who  is  interested  to  support  his  case  by  a  par- 
ticular fact  which  lies  more  particularly  within  his  knowledge."  * 

§  9.  In  an  action  for  a  personal  injury  arising  from  alleged 
negligence  of  a  corporation,  the  court  may  order  a  nonsuit,  though 
there  is  some  evidence  from  which  negligence  may  be  inferred, 
unless  there  be  evidence  on  which  a  jury  might  reasonably  and 
properly  conclude  that  there  was  negligence.^ 

§  10.  The  rules  of  law  relating  to  the  burden  of  proof  are  of 
course  closely  connected  with  those  pertaining  to  presumjyt ion  ; 
burden  of  proof  meaning  the  evidence  necessary  to  overcome  an 
antecedent  presumption,  (a) 

1  Demarest  v.  Terhune,  3  Green  (N.  J.),  *  Smith  v.  N.  Y.  &c.,  35  Barb.  225. 

532.  5  Beaulieu  v.  Portland  Co.,  48  Maine, 

■!■  Leach  v.  Fowler's,  22  Ark.  143.  291.- 
3  Ferguson  v.  Gilbert,  16  Ohio  St.  88. 

(a)  In  trover, /jossess/on  of  the  defendant  the  possession  is  not  conclusive  evidence 

is  not  presumptive  evidence  of  ownership,  of  a  change  of  title.     Possession,  with  the 

as  against  tlie  recent  previous  possession  consent  of  the  true  owner,  does  not  raise 

and  ownership  of  the  plaintiff.     Weston  a  legal  presumption  of  title  against  such 

V.  Higgins,  40  Maine,  102.  owner.     Magee  v.  Scott,  9  Gush,  148. 

Ownership  of  personal  property,  once         But,  on  the  other  hand,  tlie  possession 

proved,  is  presumed  to  continue  until  an  ofpersonal  property  is /j?//««y(/cw  evidence 

alienation  is  shown:  merely  parting  with  of  title      Thus  the  possession  of  persons 


CH.   I.] 


GENERAL   RULES   OF   EVIDENCE. 


403 


§11.  The  well-established  maxim,  "  tlie  law  presumes  every 
man  innocent,"  ^  though  primarily  applicable  to  the  cliarge  of 
crime,  may  still  be  regarded  as  in  general  equally  true  of  private 
wrongs.  Thus  official  acts  done  by  an  officer  arc  prima  facie 
evidence  of  liis  authority  to  do  them.^  (a)  So  when  there  was 
no  evidence,  in  the  case  of  an  affidavit  to  a  bill  for  an  injunction, 
made  before  a  notarj'-public  of  the  District  of  Columbia,  that  the 
notary  had  legal  or  statutory  power  to  administer  the  oath  ;  held, 
it  was  to  be  presumed,  from  the  certificate  of  the  administration 
of  the  oath,  and  authentication  thereof  by  the  notarial  seal,  that 
the  acts  were  performed  in  the  regular  exercise  of  powers  legally 
conferred,  and  that  the  notary  had  the  power  of  similar  officers  in 
the  State.^  So  the  presumption  is,  that  a  clerk  issues  an  execution 
only  under  the  direction  of  some  person  authorized  to  control  the 
writ.'*  So  that  a  sheriff  performed  his  duty,  and  complied  with 
the  requirements  of  the  law,  in  levying  an  attachment ;  and  his 
return  is  sufficient.^  Thus  that  the  sheriff  first  levied  those  attach- 
ments which  first  came  to  his  hands.^  (See  §  14.)  So  the  return 
of  an  officer,  "  executed,"  raises  a  presumption  that  the  process 
was  rightly  executed.  Though,  if  the  manner  of  the  execution 
is  set  forth,  its  correctness  may  be  examined  bv  the  court."  So 
it  is  to  be  presumed  that  a  sale  by  an  officer  of  th^  law,  invested 
with  authority  to  sell,  was  regularly  conducted  with  the  necessary 
preliminary  formalities.^     So  the  omission  of  wax,  in  sealing,  by 


1  1  Greenl.  Ev.  97,  §  34. 

2  Slielliyville   v.    Shelby ville,    1    IMet. 
(Kv.)  54;  Kellv  >:  Crct-n,  58  reiin.  302. 

a  Conully  f.' Riley,  25  Md.  402. 

4  Niantic  Bank  v.  Dennis,  37  111.  381. 


5  Anderson  v.  Sutton,  2  Puv.  480. 

6  I'liclps  V.  Katflifte,  3  Bush,  334. 

^  Case  V.  Col^iton,  1  Met.  (Ky.)  145. 
8  Vincent  v.  Eaves,  ib.  247. 


claiming  to  be  owners  of  a  vessel  is  in 
all  cases  presumptive  eviilence  of  their 
ownership  ;  and  it  is  only  when  the  title  is 
rendered  doubtful  by  contrailictory  proof, 
that  production  of  the  ro^nster  is  neces- 
sary. Eisli  V.  Skut,  21  Harb.  333  ;  Stacy 
V.  Graham,  3  Duer,  444;  Bailey  v.  New- 
World,  2  Cal.  370. 

And  a  [irior  possession,  which  has  not 
been  le'^^ally  divested,  is  sufficient  i»lmu 
farir  evidence  of  title,  against  a  defendant 
who  has  ])roved  no  title.  Clifton  v.  Lilley, 
12  Tex.  130. 

'I'iie  firimn  facie  evidence  of  ownership, 
arising  from  possession,  is  not  overcome 
by  the  bare  assertion  of  the  ])ossessor  that 
the  thing  belonged  to  another.  Roberts 
V.  Haskell,  20  111.  50. 


Twentj'  years'  possession  of  land,  under 
adeeil  from  an  administrator,  raises  a  con- 
clusive presumption  that  all  the  legal 
formalities  of  the  sale  were  observed. 
Winkley  v.  Kaime,  32  N.  H.  2()8. 

In  favor  of  long  ]iossessi()n,  almost  every 
variety  of  written  evidence  will  be  pre- 
sumeil.  the  defective  liid<s  in  the  chain  of 
title  will  be  supplied  by  presumption,  and 
the  title  declared  perfect.  Nixon  r.  Carco, 
28  Miss.  414. 

{<t)  Where  an  officer  of  well-known,  <le- 
fincil,  and  limited  powers,  performs  an  act 
at  variance  with  or  beyond  the  scope  of 
his  usual  authority,  the  burden  of  proving 
its  validity  rests  u]ion  the  party  seeking 
to  sustain  it.  Jones  v.  Muisbacli,  2(5  Tex. 
235. 


404  EVIDENCE.  [book   IV. 

a  public  officer  in  another  State,  raises  a  presumption  that  such 
is  the  law  or  custom  there. ^  So  in  replevin  against  an  attaching 
creditor,  whose  writ  has  been  lost,  proof  that  it  was  duly  issued 
by  the  proper  officer  is  primd  facie  evidence  of  its  sufficiency  as 
to  form  and  seal.^  So  the  return  of  an  officer  of  the  levy  of  an 
execution,  and  of  the  sale  of  personal  property  thereunder,  stated 
that  he  "  advertised  the  property  as  the  law  directs,"  and  then 
proceeded  to  state  the  places  where  it  was  to  be  sold  and  was 
sold.  Held,  the  court  would  presume  that  the  property  was  ad- 
vertised at  the  same  places  where  it  was  sold ;  and  the  return 
was  held  sufficient.^  So  a  soldier,  pleading  in  justification  in  an 
action  of  trespass,  that  he  acted  under  the  command  of  his  supe- 
rior officer,  is  not  bound  to  produce  the  commission  of  such  offi- 
cer, but  may  prove  that  he  was  in  command  of  a  military  force, 
that  he  assumed  to  command  as  an  officer,  and  was  recognized  as 
such.'^  So,  where  the  officer  of  a  government  assumes  to  act  in 
discharge  of  an  official  duty,  he  will  be  presumed  to  act  within 
its  legitimate  scope  ;  though  this  presumption  will  not  sustain 
the  acts  of  an  officer  outside  of,  or  contrary  to,  the  usual  and  well 
recognized  functions  and  duties  of  his  office.^  So  in  replevin, 
involving  the  title  to  logs  under  a  chattel  mortgage  executed 
pursuant  to  (Wis.)  L.  of  1861,  c.  83,  and  L.  of  1864,  c.  167,  it 
will  be  presumed  that  the  district  lumber  inspectors  were  duly 
appointed  by  the  governor,  as  therein  prescribed.^  So  where  a 
married  woman  alleged  a  purchase  with  her  separate  property 
autliorized  by  law,  the  court  will  presume  that  it  was  legal  and 
valid. '^  (a) 

1  Roberts  v.  Pillow,  1  Hemp.  624.  »  Jones  v.  Muisbach,  26  Tex.  235. 

2  McNorton  v.  Akers,  24  Iowa,  369.  6  McCutchin  r.  Piatt,  22  Wis.  561. 

3  Drake  v.  Mooney,  31  Verm.  617.  ''  Nininger  v.  Commissioner,  10  Minn. 

4  Hardage  v.  Cofiinan,  24  Ark.  256.  138. 

(«)  Opinion  by  Shaeswood,  J.,  March  possession  of  the  premises,  if  any,  or  if 
4, 1872. — The  judgment  below  was  entered  there  be  no  such  tenant,  by  posting  a  copy 
on  a  return  of  two  nildls  in  an  action  of  of  the  same  on  some  conspicuous  part  of 
covenant  on  a  ground-rent  deed  for  want  the  premises,  at  least  ten  days  previous  to 
of  appearance.  The  Act  of  April  8tli,  the  return  day  thereof,  and  also  by  publi- 
1840,  Pamph.  L.  249,  declares  that  in  all  cation  in  one  or  more  newspapers,  in  such 
such  actions  the  "returns  of  two  iiiJdls  manner  and  for  such  time  as  the  court,  by 
shall  be  in  all  respects  equivalent  to  rule  or  otherwise,  shall  direct."  The 
actual  service  "  of  the  writ  of  summons,  return  to  the  alius  summons  in  this  case 
"  as  is  now  the  practice  in  cases  of  scire  was,  "  served  by  posting  and  publication, 
facias  on  judgments  and  mortgages."  and  nihil  liuhet  as  to  defendant."  It  is 
"Provided,  however,  that  it  shall  be  the  contended  that  this  return  is  fatally  de- 
duty  of  the  said  sheriff  or  other  oflicer  to  fective  in  not  stating  on  its  face  that  there 
give  notice  of  the  said  alias  writ  by  wasno  tenant  in  possession  of  the  premises, 
serving  a  copy  thereof  on  the  tenant  in  But  it  being  made  the  duty  of  the  sheriff 


CH.    I.] 


GENERAL   RULES   OF    EVIDENCE. 


405 


§  11  a.  But  where  the  consequences  of  an  act  are  injurious,  the 
act  itself  is  sometimes  presumed  to  be  wrongful.  Thus  the  fact, 
that  a  blast  injured  a  house  near  by,  raises  a  presumption  that  it 
was  not  properly  covered.^ 

§  12.  The  point  of  reasonable  doubt,  as  sufllcient  to  justify  ac- 
quittal in  criminal  prosecutions,  is  sometimes  raised  in  civil  actions 
for  tort  or  wrong. 

§  13.  In  trover,  for  goods  stolen,  it  is  not  necessary  to  prove 
the  guilt  of  the  defendant  beyond  a  reasonable  doubt,  but  the 
jury  is  to  give  a  verdict  according  to  the  weight  of  evidence,  as 
in  other  civil  cases.-  (a)  So,  in  an  action  of  trespass  for  shooting 
a  horse,  there  is  no  presumption  of  innocence  on  the  part  of  the 
defendant,  and  the  plaintiif  is  not  bound  to  prove  his  liability 
be^'ond  a  reasonable  doubt.^ 

§  14.  Where  the  evidence,  as  to  the  exercise  of  care  by  an 
officer,  is  evenly  balanced,  the  presumption  is  that  he  has  done 
his  duty.^     (See  §  11.) 

§  15.  Where  it  appeared  from  the  evidence  on  the  part  of  the 


1  Ulrich  V.  McCabe,  1  Hilt.  25L 

'^  Sinclair  i'.  Jackson,  47  Maine,  102. 

to  serve  the  writ  on  the  tenant  in  posses- 
sion, if  any,  and  he  heing  authorized  by 
the  law,  only  in  case  tliere  is  no  such 
tenant,  to  post  a  copy  of  the  writ,  his 
return  that  he  did  so  post  it,  is  a  direct 
affirmance  that  tlierc  was  no  such  tenant, 
as  much  so  as  if  it  had  been  e.vpressly 
stated.  Tlie  tenant  in  possession  or  other 
party  aggrieved  could  maintain  an  action 
against  liiin  for  a  false  return.  On  the 
facts  supijosed,  the  law  did  not  authorize 
him  to  post  the  writ  and  return  a  service 
in  that  way.  It  was,  therefore,  a  false 
return.  It  follows  tiiat  the  return  is 
suflBcient  on  its  face,  and  the  judgment 
for  want  of  appearance  perfectly  regular. 
—  Hawkins  v.  Weightman,  Leg.  Intell. 
(March  15.  1872). 

(d )  In  the  recent  case  which  settles  this 
point,  tiie  court  give  the  following  abstract 
of  other  autiiorities,  and  recognize  a  dis- 
tinction somewhat  nice  and  technical,  but 
probably  well  founded  : — 

"  In  cases  of  insurance,  it  is  said,  in  2d 
Greenl.  Ev.  408,  when  the  defence  is,  that 
tlie  i)ro]>erty  was  wilfully  burned  by  the 
plaintiff"  himself,  the  crinu'  ni  list  l)e  as  fully 
and  satisfactorily  proved  to  the  jur}*  as 
would  warrant  them  in  finchnghim  guilty 
on  an  indictment.  .  .  .  The  same  i^ule  has 
been  held  to  be  the  law  in  this  State.  .  .  . 
Butman  v.  Ilobbs  &  Tr.,  35  Maine,  227. 


3  Wells  1-.  Head,  17  111.  204. 

*  Mills  V.  Gilbreth,  47  Maine,  320. 

But  in  Schmidt  v.  New  York  M.  F.  I.  Co., 
1  Gray,  52'J,  which  was  an  action  on  a 
policy  .  .  .  and  where  one  of  the  grounds 
of  defence  was,  '  that  the  fire  was  set  by 
the  plaintiff,  and  was  his  own  fraudulent 
and  wilful  act,'  the  judge  was  requested  to 
instruct  the  jury,  that  the  defen<lants  must 
satisfy  them,  beyond  a  reasonable  doubt, 
that  the  plaintiff  purposely  set  fire  to  the 
property  .  .  .  before  they  could  find  for 
the  defendants.  The  judge  declined  so  to 
instruct,  ami  his  ruling  was  sustained.  In 
civil  cases,  when  the  rule  contended  for  by 
the  defendant  is  required,  the  criminal  act 
must  be  so  set  out  in  the  pleadings  as  to 
raise  that  distinct  issue.  .  .  .  Hut  when  no 
such  criminal  act  is  raised  by  the  i)lead- 
ings,  the  jury  are  authorized  to  (lecide 
upon  the  preponderance  of  the  evidence. 
1  (ireenl.  Kv.  687  ;  Schmidt  c.  Ins.  Co.,  1 
Gray,  529.  No  such  issue  was  ]iresented 
by  the  pleadings  in  this  case.  Nor  was  it 
necessary  that  the  jury  should  find  that  a 
larceny  hail  been  committed,  to  entitle  the 
plaintiff  to  a  verdict.  Though  the  taking 
might  have  been  felonious,  it  was  not 
necessarily  so.  The  only  issue  .  .  .  was 
one  of  conversion.  .  .  .  The  fai't  that 
testimony  was  introduced  teinling  to  sliow 
that  the  defendant  had  commiite  1  a 
larceny  .  .  .  cannot  change  the  result." 
Per  Rice,  J.,  47  Maine,  107. 


406  EVIDENCE.  [book   IV. 

plaintiff,  that  he  testified  as  a  witness  on  the  trial,  in  which  the 
false  testimony  was  said  to  have  been  given  by  him,  but  there 
was  no  express  evidence  that  he  was  sworn;  held,  the  former 
fact  tended  to  prove  the  latter,  and  in  the  absence  of  evidence  to 
the  contrary  was  sufficient  proof  of  it,^  (a) 

§  16.  Evidence  is  sometimes  admitted  in  rebuttal,  which  might 
not  otherwise  be  strictly  admissible.^  Thus  in  an  action  against 
an  officer,  to  recover  the  value  of  attached  property  which  has 
been  stolen  ;  if  evidence  has  been  introduced  to  show  that  in  par- 
ticular instances  his  keeper  was  careless,  in  leaving  the  room  in 
which  the  property  was  kept  with  the  door  unlocked,  he  may 
show,  in  reply,  that  it  was  the  habit  of  the  keeper  to  lock  the 
door  when  about  to  leave  the  room.  "  The  probability  that  the 
property  was  taken  away  when  the  door  was  open  might  certainly 
have  been  lessened  by  the  evidence."  ^  So  in  an  action  for  a 
personal  injury,  if  the  surgeon  who  attended  the  plaintiff  testify, 
on  cross-examination,  that  he  should  judge  the  plaintiff  to  have 
been  a  man  of  intemperate  habits,  and  that  injuries  such  as  he 
had  received  would  be  aggravated  by  intemperance  ;  the  plaintiff 
may  introduce  the  testimony  of  other  surgeons  as  to  the  nature, 
severity,  and  ordinary  duration  of  an  injury  such  as  the  plaintiff 
had  received.  "■  If  the  defendants  had  a  right  to  rely  on  the  fact 
that  the  bad  habits  of  the  plaintiff  aggravated  the  consequences  of 
the  injury  .  .  .  then  the  evidence  of  surgeons  as  to  the  effect  of 
predisposing  causes  on  similar  injuries  was  clearly  competent.  If, 
on  the  other  hand,  a  tortfeasor  cannot  avail  himself  of  proof  of 
the  health  or  condition  of  tlie  plaintiff  at  the  time  of  the  injury 
.  .  .  then  the  evidence  introduced  by  the  plaintiff  was  irrelevant. 
And  in  either  view,  its  introduction  worked  no  harm  to  the  de- 
fendants." ^  So  if,  in  an  action  for  breaking  and  entering  a  shop 
and  destroying  articles  therein,  the  plaintiff,  while  testifying  in 

1  Cass  V.  Anderson,  33  Verm.  182.  *  Linton  v.  Hurley,  14  Gray,  191;  per 

2  See  Union,  &c.  v.  Crary,  25  Cal.  507.     Bigelow,  J.,  ib.  192. 

3  Dorman  v.  Kane,   5  Allen,  38 ;  per 
Metcalf,  J.,  ib.  40. 

(a)  The  point  in  tbis  case  was  tbe  cor-  and  as  tbe  jury  might  find  that  fact  from 

rectness  of  an  instruction  to  the  jury,  that  the  evidence  so  tending  to  prove  it,   and 

they  not  only  mifiht,  but  were  hound  to,  as  there  was  no  evidence  to  tlie  contrary, 

infer  one  fact  from  proof  of  the  other.  The  they  were    bound   to  find    that   fact  as 

reasoningof  the  court  might  perhaps  lead  proved.  .  .  .  Such  is  the  natural  and  legal 

to  results  somewhat  impracticable,   and  inference,  and  jurors  are  not  at  liberty  to 

not  strictly  accordant  with  tlie  establisliod  disregard  the  necessary  result  of  undis- 

rules    of  evidence.     "  The   fact   that  he  puted  facts."     Per  Aldis,   J.,  33  Verm, 

testified  tends  to  prove  that  he  was  sworn,  185. 


CH.    I.]  GENERAL   RULES   OF   EVIDENCE.  407 

his  own  belialf,  has  volunteered  the  statement  tliat  no  liquors 
were  in  the  shop  at  the  time ;  it  is  competent  for  the  defendant 
to  introduce  evidence  in  reply,  that  liquors  were  found  in  the 
shop  at  the  time  of  the  alleged  trespass,  although  the  plaintiff  dis- 
claims seeking  damages  for  their  destruction.^  So,  when  one 
party  gives  in  evidence  the  statements  of  a  deceased  agent  of  a 
former  owner  in  regard  to  a  division  line,  it  is  competent  fur 
the  other  party  to  prove,  by  another  witness,  the  declarations  of 
the  same  man  about  the  same  thing ;  the  court  remarking,  "  it 
was  not  unfair  to  fight  the  adversary  with  his  own  weapons."  ^ 
So  where  the  plaintiff  in  an  action  of  trespass  produced  a  mort- 
gage from  F.  to  himself,  in  order  to  prove  constructive  possession, 
and  the  defendant  replies  that  F.  at  that  date  had  divested  him- 
self of  all  title  by  a  previous  mortgage  to  B. ;  the  latter  mortgage 
becomes  admissible  evidence.^  So  in  an  action  for  personal 
property,  where  the  defendants  have  under  the  New  York  Code 
(§  211)  put  in  an  "■  undertaking"  requiring  a  return  to  them  of 
the  property ;  the  undertaking  is  competent  evidence  for  the 
plaintiff,  as  disproving  the  allegation  in  the  answer,  that  the  de- 
fendants did  not  detain  the  property,  its  weight  being  for  the 
jury.'*  So  in  an  action  against  a  railroad  corporation,  for  damages 
sustained  by  the  negligence  of  an  engineer,  who  is  alleged  by  the 
plaintiff  to  have  been  employed  by  the  defendants  at  low  Avages 
because  of  his  Avant  of  skill ;  the  defendants  may  prove  by  their 
president  that  he  employed  him  as  a  competent  and  safe  engineer.^ 
And,  assuming  that  it  is  prima  fade  evidence  of  negligence  in  a 
railway  company  that  a  train  has  got  off  the  line,  such  evidence 
is  entirely  rebutted  by  proof  that  the  accident  arose  from  the  wil- 
ful and  wrongful  act  of  a  stranger.*^  So  where,  in  an  action  for 
assault  and  carnal  intercourse,  the  plaintiff  is  asked  whether  she 
had  not  held  the  same  intercourse  with  others,  and  answers  in  the 
negative ;  the  defendant  may  prove  the  contrary,  in  order  to  re- 
pel the  charge  of  force."  So  in  an  action  against  an  express 
company,  for  money  alleged  to  have  been  entrusted  to  them,  but 
never  delivered,  and   for  which  a  receipt  had  been  given  by  a 

1  Brown  v.  Perkins,  1  Allen,  89.  5  Robinson  v.  Fitcliburfj,  &c.,  7  Gray, 

2  O'Hcilly  V.    Shadle,  33   Pcnn.  489;     92. 

per  Tliompson,  .T.,  ib.  4'.iO.  <>  Latch  v.  Ruraner,  &e.,  3  Hurl.  &  Nor. 

»  Howe  V.  Farrar,  44  Maine,  233.  930. 

*  lilack  V.  Foster,  28  Barb.  387.  7  Watry  r.  Ferber,  18  Wis.  500. 


408  EVIDENCE.  [book  IV. 

clerk  of  the  owner,  by  mistake,  supposing  he  was  receipting  for 
other  articles;  the  company  proved,  by  one  of  their  agents,  the 
custom  of  their  drivers,  never  to  deliver  packages  without  getting 
a  receipt,  and  that  they  always  took  the  package  to  the  consignee 
when  they  called  for  the  receipt.  Held,  the  plaintiff,  on  cross- 
examination,  might  prove  that  it  was  the  custom  of  the  particular 
driver  who  had  this  package,  to  steal  money  parcels,  and  that  some 
time  after  this  occurrence  the  company  arrested  him,  made  him  sur- 
render $850  in  money,  and  some  valuable  jewelry ;  and  that  the 
driver  escaped  from  the  officer.^  So  where,  in  proceedings  to 
assess  damages  for  a  bridge  taken  for  a  highway,  the  petitioners, 
a  corporation,  have  offered  and  used  their  records ;  the  respon- 
dents may  give  in  evidence  votes  from  those  records.^  So  in  an 
action  for  board  of  the  defendant's  wife,  the  answer  alleged  that 
the  wife  had  deserted  him,  and  had  committed  adultery  with  A. 
The  defendant  called  a  witness  to  prove  the  adultery,  and  that  the 
witness  informed  him  at  tlie  time.  Held,  the  plaintiff  might 
show,  that  after  that  time  the  defendant  filed  a  libel  for  divorce  on 
the  ground  of  adultery  with  certain  persons  named,  but  omitted 
any  charge  against  A.  by  name.^  So  where  the  question  was, 
whether  one  J.  was  making  a  reasonable  and  proper  use  of  his 
land  within  the  limits  of  a  highway,  in  piling  lumber  there,  and 
the  plaintiff  had  introduced  evidence  that  J.  claimed  a  piece  of 
land  near  by,  not  in  the  highway,  on  which  he  might  have  piled 
it ;  it  was  competent  for  the  defendant  to  show  that  a  part  of  such 
land  was  claimed  by  another  person,  or  that  he  claimed  a  right  of 
way  over  it  to  a  building  of  his  own,  as  tending  to  rebut  the 
plaintiff's  evidence.^  So,  in  an  action  for  infringement  of  a  patent, 
the  defendant  contended  that  the  plaintiff  had  abandoned  his  dis- 
covery, and  urged,  as  proof  of  abandonment,  the  lapse  of  time 
between  the  granting  of  the  patent  and  the  commencement  of  the 
suit.  Held,  the  plaintiff  might  show  acts  prosecuting  or  asserting 
his  discovery  ;  as  the  filing  of  drawings  in  the  patent-office.^  So 
although  a  plaintiff  in  replevin  cannot  adduce,  in  rebuttal  of  evi- 
dence that  he  had  acknowledged  having  sold  the  property  in  dis- 
pute to  A.,  his  own  declarations,  not  made  in  the  presence  of  A., 
nor  at  the  time,  nor  pertaining  to  the  acknowledgment;  he  may 

1  American  v.  Ha<T<jartl,  37  111.  465.  *  Chamberlain  v.  Enfield,  43  N.  H.  356. 

2  Central  v.  Lowell,  15  Gray,  106.  &  Emerson  v.  Hogg,  2  Blatch.  1. 
'  Clement  v.  Kimball,  98  Mass.  535. 


CH.    I.]  GENERAL    RULES    OF    EVIDENCE.  409 

prove  any  qualification  thereof  made  at  tlie  time,  or,  as  an  inde- 
pendent fact,  wliat  was  the  actual  dealing  between  himself  and  A.^ 
in  an  action  for  infringement  of  a  patent,  the  defendant  offered  S., 
evidence  that  0.,  who  was  dead,  had  used  a  process  identical 
with  the  patent  before  it  Avas  taken  out,  and  had  sold  some  of  the 
product  to  S.,  and  others.  The  plaintiff  in  reply  called  S.,  who 
testified  that  0.  had  sold  him  a  small  quantity  of  the  product,  and 
at  the  time  of  the  sale  said  that  it  was  a  new  article,  that  he  did 
not  wish  it  to  be  publicly  known,  and  that  he  would  sell  to  8,  all 
he  could  manufacture.  Held,  so  much  of  this  testimony  only,  as 
related  to  what  0.  said,  was  improperly  admitted.- 

§  17.  Eut  a  newspaper  advertisement,  which  furnished  the 
occasion  of  a  conversation  testified  to,  but  which  neither  formed 
part  of,  nor  explained  the  conversation,  is  not  admissible.^  So 
possession  of  property  is  not  a  fact  that  entitles  the  party  holding 
it  to  give  his  own  declarations  in  evidence,  either  to  establish  his 
title,  or  to  contradict  the  witnesses  of  the  other  side.*  So,  to 
rebut  the  inference  of  malice  from  statements  made  by  the  de- 
fendant of  the  plaintiff's  difficulties  with  his  wife,  it  is  not  com- 
petent for  the  defendant  to  prove,  that  ''  the  plaintiff's  wife  had 
in  fact  complained  of  his  abuse  in  connection  with  her  leaving 
him  at  a  certain  time."  ^  So,  in  an  action  of  tort  against  a  city 
for  obstructing  a  stream  by  the  erection  of  a  bridge,  to  the  injury 
of  a  mill,  evidence  that  one  of  the  then  owners  of  the  mill,  at  the 
hearing  before  the  committee  of  the  city  council,  objected  to  the 
construction  of  the  bridge,  as  likely  to  obstruct  the  water,  is  in- 
admissible for  the  plaintiff;  although  the  defendants  have  been 
allowed  to  show,  upon  cross-examination  of  the  other  owner,  that 
he  was  one  of  that  committee,  and  approved  of  the  bridge.''  So 
declarations  of  a  defendant  in  an  attachment  suit  cannot  be  ex- 
plained by  others  subsequent  to  the  attachment."  So  a  witness, 
who  has  testified  to  the  use  of  a  way  across  a  piece  of  land,  can- 
not be  contradicted,  by  proof  that  there  was  a  nearer  route  over 
a  public  road  which  he  might  have  used.^ 

1  Johnson  v.  Brock,  2?,  Ark.  282.  5  Collins  v.  Stephenson,  8  Crav,  438. 

-  Hvde  r.  I'ahner,  3  B.  &  S.  657.  6  Spra<iue  v.  Worcester,  13  Grav,  193. 

8  Bell  V.  Troy,  35  Ala.  184.  '   Tucker  ;•.  Frederick,  28  Mis.  574. 

*  Swindell  v.  Warden,  7  Jones,  575.  ^  Blake  v.  Everett,  1  Allen,  248. 


410 


EVIDENCE. 


[book  IV. 


CHAPTER   11. 


EVIDENCE   OF   OPINION,   REPUTATION,    CUSTOM,  ETC. 


1.  General  rule  —  experts. 

3.  Taking  of  land  by  railroads,  &c. 

7.  Miscellaneous    cases   relating   to   land. 

10.  Injuries   arising   from    defective   roads, 
&c. 

15.  Boilil}'  health  and  disease. 

23.  Opinions  predicated  upon  assumed  or 
hypothetical  facts  or  premises. 


25.  Miscellaneous  points  as  to  the  opinions 
of  experts  and  others. 

43  a.  Intention. 

44.   Reputation  and  character. 

50.  Rumor  and  report. 

53.  Custom  and  usage. 

55.  Distinction,  as  to  evidence  of  reputa- 
tion and  of  specific  conduct  or  facts. 


§  1.  The  opinions  of  witnesses  cannot  ordinarily  be  received  as 
evidence,  unless  they  relate  to  matters  of  skill  and  science.^  (a) 

1  Spear  v.  Eichardson,  34  N.  H.  428;  Eich  r.  Jones,  9  Cush.  329. 


(a)  A  witness  may  testify  what  he 
"understood"  from  a  conversation  be- 
tween others,  in  the  sense  of  what  the 
parties  in  fact  or  in  substance  said,  as  he 
understood  them  ;  but  not  as  giving  his  in- 
ferences from  what  they  said.  So  the 
"  impression  "  of  a  witness  is  competent,  if 
derived  from  recollection  ;  otherwise,  if  it 
be  merely  his  belief,  founded  on  hearsay, 
or  liis  mere  inference.  What  a  witness 
"presumes"  to  be  true,  without  actual 
knowledge,  is  incompetent.  Kingsbury 
V.  Moses,  45  N.  H.  222. 

So  mere  conclusions,  or  deductions  from 
facts.     Gregory  v.  Walker,  38  Ala.  26. 

A  witness,  wlio  has  not  seen  a  carriage 
start,  may  be  allowed  to  testify,  merely 
from  hearing,  as  to  the  place  from  which 
it  started.  State  v.  Shinborn,  46  N.  H. 
497. 

So  that  the  seizure  of  property  by  an 
oflScer,  acting  without  lawful  authority, 
"  was  made  in  an  offensive  and  insulting 
manner."  Eaisler  v.  Springer,  38  Ala. 
703. 

So,  in  an  action  by  a  widow  and  chil- 
dren of  a  person  killed  through  the  negli- 
gence of  a  railroad,  a  witness  may  be 
asked,  whether  the  attention  of  a  passen- 
ger, standing  on  the  platform,  al)out  to  get 
on  an  approaching  car,  would  not  neces- 


sarily be  directed  to  the  car  he  is  about 
to  enter.  Pennsylvania  v.  Henderson,  51 
Penn.  315. 

An  expert  in  bookkeeping  cannot  be 
asked,  if  the  books  of  a  person,  whose 
insolvency  is  in  question,  show  whether 
at  a  certain  date  he  was  insolvent.  Persse 
V.  Willett,  1  Eob.  (N.  Y.)  131. 

A  witness  will  not  be  allowed  to  testify 
that  a  party  "  was  insolvent,"  although 
he  states  that  he  "  knows  the  fact  of  his 
own  personal  knowledge."  Nuckolls  v. 
Pinkston,  38  Ala.  615. 

The  unsupported  opinion  of  a  surveyor 
as  to  the  identity  of  a  tract  of  land,  un- 
less he  also  state  some  fact  or  facts  by 
which  the  court  can  determine  for  itself 
the  location  of  the  land,  is  insufficient  to 
enable  the  cotu't  to  locate  it.  Eandolph 
V.  Adams,  2  W.  Va.  519. 

Where  damages  are  claimed  for  non- 
delivery of  a  telegram  ordering  purchase 
of  stock,  testimony  is  properly  excluded, 
"  that  there  was  no  certainty  that  the 
stock  could  have  been  purchased  at  the 
quotation  prices  on  the  morning  the  tele- 
gram would  have  been  received,"  as  it  is 
mere  opinion.  United  States,  &c.  v.  Wen- 
ger,  55  Penn.  262. 

It  is  a  general  but  not  a  universal  rule, 
that  a  witness  must  state  facts  and  not 


CH.    II.]       EVIDENCE  OF  OPINION,  REPUTATION,  CUSTOM,  L'iC.  411 

§  1  a.  Upon  a  question  of  damages,  evidence  of  ()i)inion  is  not 
admissible,  unless  governed  by  some  pecuniary  standard  or  rule 
of  law.i  Thus  the  oj)inion  of  the  plaintiff,  testifying  as  a  wit- 
ness, is  not  sufficient  evidence  to  sustain  a  judgment  for  trespass 
done  upon  his  land  by  cattle  and  horses,  Avhere  there  is  no  other 
evidence  of  the  amount  of  damage  or  by  which  it  can  be  prop- 
erly determined.  The  court,  in  reference  to  cases  cited,  in 
which  opinions  had  been  admitted  as  evidence,  remark  as  follows: 
"  Opinions  in  such  a  case  are  received  ex  necessitate,  for  the  rea- 
son that  the  minute  appearances  upon  which  they  depend  cannot 
be  so  perfectly  described  as  to  enable  a  jury  to  draw  a  just  con- 
clusion from  them.  They  are  likened  to  opinions  of  witnesses 
which  are  receivable  in  proving  handwriting,  identity,  and  intox- 
ication. ...  It  would  have  been  competent  for  the  witness  to 
state  the  quantity  of  hops,  <fcc.,  .  .  .  the  fields  would  have  pro- 
duced in  the  year  1864,  if  the  defendant's  cattle  had  not  tres- 
passed upon  them,  and  how  much  less  each  field  would  produce 
in  consequence  of  the  injury ;  .  .  .  and  to  have  followed  up  such 
statements  with  other  facts  until  his  final  conclusions  would  ap- 
proximately show  the  amount  of  damages,  ...  or  the  witness 
could  have  been  confined  ...  to  a  statement  of  the  facts.  ...  It 
would  also  have  been  proper  ...  to  state  the  market  value  ...  at 
the  time  of  the  trial,  and  the  ordinary  fluctuations  in  such  values, 
between  the  times  the  trespasses  Avere  committed,  and  the  times 
the  crops  would  have  been  ready  for  market,  if  they  had  not 
been  injured."^  And  in  another  recent  case  it  is  said,  tliat  the 
opinions  of  experts  are  admitted  "  in  matters  of  skill,  science, 
or  trade  .  .  .  because  the  matter  of  inquiry  is  one  on  which 
the  jury  are  not  supposed  in  general  to  possess  information 
suflScient  to  enable  them  to  draw  proper  inferences  from  facts ; 

1  Cliainberlain  v.  Porter,  9  Min.  2G0.  2  Armstrong  v.  Smith,  44  Barb.  120 ; 

per  Balcom,  J.,  ib.  124. 

opinion  ;  nor  are  the  exception.?  confineil  writing,  value,    insanity,  time,  distance, 

to  exiierts.     Wliere  lie  has  iiad  tiie  means  &c.     C'avendisii  v.  Troy,  41  Vt. ',>'.». 

of  personal  observation,  an<l  the  tacts  and  Any  ]ierson  i)resent,  possessing  a  knowl- 

circumslances  which  lead  his  mind   to  a  edge  of  time  and  of  distances,  is  competent 

conclusion  are  incapable  of  being  detailed  to  express  an    opinion    ui)on  the  rate  of 

and  described,  so  as  to  enable  any  other  speed  an  engine  was  running.     Detroit  v. 

person  to  form  an  intelligent  conclusion  Van  Steinburg,  17  Mich   *J"J. 

from  thetn,  he  is  often  allowed  to  add  his  A  witness  may  testif\'  to  the  condition 

opinion,   or  the    conclusion   of    his   own  of  an  article  of  pro])erty,  without  produc- 

niind,  as  iu  questions  of  identity,  hand-  tion  of  the  thing  itself.     Com.  v.  Pope, 

103  Mass.  440. 


412  EVIDENCE.  [book   IV. 

and  the  witnesses,  being  persons  of  skill,  whose  business  or  pro- 
fession leads  them  to  an  habitual  application  of  principles  to  such 
facts,  and  to  the  weighing  of  such  facts  with  reference  to  the 
results  which  they  indicate,  are  able,  by  their  opinions,  to  afford 
the  jury  the  means  of  making  a  proper  application  of  the  facts."  ^ 
When  the  subject  of  inquiry  "  so  far  partakes  of  the  nature  of 
science  as  to  require  a  course  of  previous  habit  or  study  in  order 
to  attain  the  knowledge  of  it,  the  opinion  of  witnesses  acquainted 
with  the  subject  of  injury  may  be  received."  But  not  "  wiien 
the  inquiry  is  in  relation  to  a  subject-matter,  the  nature  of  which 
is  such  as  not  to  require  any  peculiar  habits  of  study  in  order  to 
qualify  a  man  to  understand  it."^  And  another  distinction  of 
equal  importance,  though  relating  to  the  effect,  rather  than  the 
competency,  of  this  kind  of  evidence,  is  forcibly  expressed  in  a 
recent  case,  as  follows :  *'  While  the  opinion  of  the  experienced, 
skilful,  and  scientific  witness,  who  has  a  competent  knowledge  of 
the  facts  involved  in  the  case  on  which  he  speaks,  affords  essen- 
tial aid  to  courts  and  juries,  that  of  unskilful  pretenders,  quacks, 
and  mountebanks,  who,  at  times,  assume  the  character  of  experts, 

not  unfrequently  serves  to  becloud  and  lead  to  erroneous  conclu- 
sions." ^  Qy^y 

§  1  6.  Such  evidence  is  not  admissible,  to  prove  that  a  rule  of 

'  Per  Bosworth,  J.,  Buffum  v.  N.  Y.  18   Geo.   194;   Dawson  ii.   Callaway,   ib. 

&c.,  4  R.  I.  223.  573 ;  Redf.  on  Eailw.  398,  n. 

'i  1  Smith,  Lead.  Cas.  286.     See  Com.  3  Pgr    Rice,   J.,   Heald  v.   Thing,  45 

V.  Cooley,  6  Gray,  350 ;  Keener  v.  State,  Maine,  398. 

(a)  In   an    action   against  a  gas-light  &c. ;  but  not  that  the  estate  in  remainder 

companj' for  injury  to  a  plaintiff's  well  by  has    been    damaged    a    certain   amount, 

the  escape  of  the  gas,  witnesses  maj'  give  Woodward  v.  Gates,  38  Ga.  205. 

their  opinion  as  to  the  amount  of  damage.  In   an   action  for  falsely  representing 

Ottawa  V.  Graham,  35  111.  346.  that  A,  a  tradesman,  was   trustworthy, 

In  an  action  to  recover  damages  done  the  defendant's  counterman,  acquainted 

by  cattle  to  orchards  and  crops,  the  plain-  with  the  transactions  between  the  defend- 

tiff,  a  farmer,  may  testify  as  to  the  quan-  ant  and  A,  may  be  asked  :  "  Was  A  at 

tity  destro^'ed,  its  value,  and  how  much  the  time  of  the  representation  trustworthy 

the  ground  would  have  produced  if  the  to   your  belief."  Sheen  v.  Bumpstead,  2 

crop  had  not  been  destroyed ;  and  his  son,  Hurl.  &  Colt.  193. 

who  had  assisted  him  in  harvesting  the  Where   a   witness,   in   answer    to    the 

crops,   as  to  the   proportions   destroyed,  question  whether  A  was  able  to  pay  his 

Seamans  v.  Smith,  46  Barb.  320.  debts,  at  a  time  specified,  stated  that  he 

In  an  action  against  a  tenant  for  life  for  was  not,  and  then  stated  numerous  facts 
waste,  witnesses  may  give  their  opinions,  touching  the  pro])erty  of  A  and  his  in- 
accompanied  by  the  facts  on  which  they  debtedness,  showing  an  intimate  acquaint- 
are  predicated,  as  to  the  whole  number  of  ance  with  the  condition  of  A  and  his  utter 
acres  from  which  timber  has  been  cut,  insolvency  ;  held,  the  evidence  was  com- 
the  proportion  which  the  timbered  land  petent.  Thompson  v.  Hall,  45  Barb.  214. 
bears  to  the  cleared  land  on  each  tract.  In  an  action  against  a  railroad  for  per- 


CH.    II.]       EVIDENCE  OF  OPINION,  REPUTATION,  CUSTOM,  ETC.  413 

navigation,  recognized  by  tlie  general  maritime  law,  does  not 
exist  in  a  particular  locality.^ 

§  1  c.  And  the  opinions  of  witnesses  will  not  be  allowed  to 
control  the  ellect of  the  facts  proved,  which  show  that  the  jjlaintifT 
has  no  cause  of  action,  even  so  far  as  to  require  submission  ol"  the 
case  to  the  jury.  Thus  the  staircase,  leading  from  a  station  ui' 
the  defendants'  railway,  was  about  six  feet  in  width,  had  a  walk 
on  each  side,  but  no  hand-rail ;  and,  on  the  edge  of  each  step,  a 
strip  of  brass,  originally  roughened,  but  from  constant  use  worn 
and  slippery.  The  plaintiff,  a  frequent  passenger,  while  ascend- 
ing the  stairs,  slipped,  fell,  and  was  injured.  Two  persons  testi- 
fied that  in  their  opinion  the  staircase  was  unsafe ;  and  one  of 
them,  a  builder,  suggested  that  brass  nosings  were  improper;  that 
lead,  being  less  slippery,  would  have  been  better ;  and  that  there 
should  have  been  a  hand-rail.  Held,  there  Avas  no  evidence  of 
negligence  to  go  to  the  jury.^ 

§  1  d.  The  testimony  of  experts  is  not  admissible  as  to  the  suf- 
ficiency of  bars  and  a  barway  to  restrain  cattle."^ 

§  1  e.  A  witness,  of  long  railroad  experience,  cannot  give  his 
opinion,  whether  the  blowing  of  a  steam  whistle  was  under  the 
circumstances  of  the  case  reasonable  and  prudent;*  nor  that  the 
notice  attached  to  the  doors  of  passenger  cars,  that  "  passeilgers 
must  not  stand  on  the  platform,"  was  intended  to  refer  only  to  such 
time  as  the  cars  were  in  motion.^ 

§  1/.  A  witness  who  has  testified,  that  he  had  kept  a  livery 
stable  in  R.  nine  years,  and  had  known  a  certain  mare  ever  since 
she  had  been  brought  there,  cannot  be  asked,  "  whether  or  not 
this  mare  was  a  proper  animal  to  be  used  and  let  for  the  pur- 
poses of  a  livery  stable,  and  to  be  driven  off  on  a  hunting  excur- 


sion 


"  0 


1  The  Clement,  2  Curt.  303.  '^  EnriRht  v.  San  Francisco,  33  Cal.  230. 

2  Crafter  ?;.  jNletropolitan,   &c.  (Kng.)  *  Hill  i\  Tortlanil,  55  :\laine,  438. 
Law  Ik'p.,  1  C.   P.  300;   Am.  Law  Kev.  &  IMacon  v.  Johnson,  38  Ga.  40'J. 
Oct.  180G,  p.  147.  *  Graves  v.  Moses,  13  Minn.  335. 

mitting    mules    to   escape,    wliile    bciufj  In  an  action  by  one  mining  claimant  to 

driven  to  water,  a  witness  having  kiiowl-  enjoin    another  from  tunnelling,   &c.,  to 

edge  of  the  subject  may  be  askeil :  "  How  the  injury  of  a  ditch,  the  opinions  of  per- 

many    liands  would  be  necessary  to  drive  sons  of  learning  and  exjierience  in  mining, 

250  mules,   supposing  they  were  broken  who    have   examined   the   premises,   are 

mules,    and   driven    under    the    circum-  admissible,  to  jirove  the  cause  of  an  alleged 

stances     detailed     by    the     witnesses."  cracking    and   settling   of  the    plaintitr's 

North  V.  Akers,  4  Ivans.  453.  premises.     Clark  v.  Willett,  35  Cal.  534. 


414  EVIDENCE.  [book   IV. 

§  1  (/.  As  to  experts,  the  court  is  to  judge,  in  the  first  instance, 
wliethor  they  possess  suflficient  skill  to  entitle  them  to  give  an 
opinion  ;  and,  if  they  are  allowed  to  testify,  it  is  for  the  jury  to 
determine  Avhether  they  have  sufficient  skill  to  render  their  opin- 
ions of  any  importance.^ 

§  1  h.  Where  a  part  of  the  testimony  is  that  of  experts,  it  is 
error  to  instruct  the  jury  that  they  "  must  be  governed  by  it," 
"  must  not  consider  their  own  judgment  better  than  that  of  the 
witnesses."  ^  So  a  statement  made  by  a  vendor,  that  a  sore  on 
a  horse's  eye  was  produced  by  a  mule  bite,  is  not  so  invalidated 
by  the  opinion  of  a  horse-doctor  to  the  contrary,  that  a  verdict 
that  the  representations  were  not  false,  is  against  evidence.^ 

§  1  i.  Where,  in  an  action  against  a  copper  company  for  injury 
to  land  from  the  discharge  of  poisonous  substances  from  a  mill, 
the  plaintiff  has  shown  by  an  expert  that  the  grasses  on  his  land 
contain  copper :  evidence  of  an  expert  is  admissible,  in  rebuttal, 
that  copper  frequently  exists  in  vegetation.'* 

§  2.  A  question  to  experts  requires  no  particular  form.^ 

§  3.  There  is  no  class  of  cases,  in  which  the  competency  and 
effect  of  opinion,  as  evidence,  more  frequently  come  in  question, 
than  those  growing  out  of  the  taking  of  land  by  railroad  corpo- 
rations, counties,  towns,  and  cities.*^  Upon  this  subject  it  is 
remarked  in  a  late  case :  "  If  the  true  value  of  an  estate  imme- 
diately before  and  immediately  after  the  location  of  a  road  over  it 
could  be  accurately  ascertained,  such  a  discovery  would  afford  the 
most  exact  means  of  determining  what  was  the  real  pecuniary 
damage.  The  market  value  is  a  near  and  perhaps  the  closest  ap- 
proximation to  it ;  and,  therefore,  any  evidence  which  is  compe- 
tent in  its  general  character  to  prove  such  value,  is  apposite  and 
admissible.  There  can  be  no  absolute  standard  by  which  the 
value  of  land  or  real  estate  can  be  measured ;  and,  of  course, 
when  it  cannot  be  tested  by  the  fact  of  a  recent  sale,  the  nearest 
approach  to  it  which  can  be  attained  is  a  knowledge  of  the 
opinion  and  judgment  of  intelligent  practical  men,  who  are  best 
acquainted  with  the  property.""^    And,  with  regard  to  the  general 

1  State  V.  Ward,  39  Vt.  225  ;  Berry  v.  *  Hunt  v.  Lowell,  &c.,  8  Allen,  169. 
Reed,  53  Maine,  487.  ^  gge  Brown  v.  Corey,  43  Penn.  495  ; 

2  Anthony  v.  Stinson,  4  Kans.  211.  Shaw  v.  Cliarlestown,  2  Gray,  107. 

3  Benson  v.  Griffin,  30  Ga.  106.  7  Per  Merrick,  J.,  Dwight  v.  County, 
*  Lincoln  v.  Taunton,  9  Allen,  181.          &c.,  11  Cush.  203. 


CII.    II,]       EVIDENCE  OF  OPINION,  REPUTATION,  CUSTOM,  ETC.  415 

admissibility  of  mere  opinions  upon  questions  of  value,  it  is  re- 
marked in  a  late  case:  "Questions  of  value  are  always  more 
or  less  questions  of  opinion.  They  are  always  resorted  to  in 
actions  for  breach  of  warranty  of  soundness  to  test  the  value 
between  a  sound  and  an  unsound  animal;  and,  so  far  as  I  know, 
the  rule  is  universal  .  .  .  after  a  proper  foundation  .  .  .  by  show- 
ing the  acquaintance  of  the  witness  with  this  species  of  prop- 
erty." 1 

§  4.  One  who  has  been  an  assessor  eighteen  years  may  testify 
to  the  value  of  land  and  an  easement  connected  therewith,  taken 
for  a  railroad  the  first  year  of  his  official  position,  though  prior  to 
such  taking  he  had  no  personal  knowledge  thereof."'^  So  a  witness 
may  give  his  opinion  as  to  the  value  of  the  land  affected,  both 
before  and  after  the  location.^  So  one  residing  and  owning  land 
within  half  a  mile  of  the  land,  which  he  has  known  for  six  years, 
and  who  has  heard  of  sales  of  land  in  the  vicinity,  may  testify  to 
his  opinion  of  the  value  of  the  land  taken.^  So  in  a  hearing  to 
assess  damages  occasioned  by  laying  out  a  highway,  the  opinion 
of  competent  witnesses,  as  to  the  comparative  value  of  the  land 
before  and  after  the  laying  out,  is  admissible  evidence,  its  weight 
and  value  being  determined  by  the  jury.^  So  a  farmer,  who  has 
bought  and  sold  other  land,  may  be  asked  his  opinion  of  the  value 
of  the  land  before  and  after  the  location  of  the  way.^  So  on  the 
hearing,  before  a  jury,  of  a  petition  for  the  assessment  of  damages 
sustained  by  the  taking  of  land  for  a  highway,  an  expert  in  the 
value  of  land,  who  testifies  that  the  laying  out  of  the  street  was  a 
benefit  to  the  estate  of  the  petitioner,  may  be  asked  by  the  re- 
spondents how  much,  in  his  opinion,  it  benefited  the  estate ;  how 
much  more  per  foot  the  remaining  land  would  be  worth  in  conse- 
quence of  such  laying  out;  and  what  would  bo  the  difference 
per  foot  between  the  value  of  the  land  on  the  street,  as  laid  out, 
sixty  feet  wide,  and  the  value  of  the  same  land  on  a  street  forty 
feet  wide,  as  proposed  on  a  plan  shown  to  the  jury  by  the  peti- 
tioner.' 

§  5.  But  the  policy  of  admitting  opinions  as  evidence,  in  this 

1  Per  Ilofceboom,  J.,  Van    Deuscn  v.         5  Dwight   v.    County,  &c.,    11    Cush. 

Yoiin<r,  2',t  Barb.  20.  201. 

■i  Wliitiuiin  V.  Boston,  &c.,  7  Allen,  313.  «  "West,   &c.   v.    Cliasc,   5   Gray,  421. 

'  Cleveland,  &c.  v.  Ball.  5  Ohio  (N.  S.),  See  Fowler  v.  County,  &c.,  (3  Allen,  'J2  ; 

568;  Evansville,  &c.  v.  Cochran,  10  Inil.  Shattuck  v.  Stoneham,  &c.,  ib.  115;  Flint 

660.  V.  Flint,  ib.  34. 

*  Russell  y.  Horn,  &c.,  4  Gray,  607.  "  iSliaw  r.  Charlestown,  2  Gray,  107. 


41G  EVIDENCE.  [book   IV. 

class  of  cases  as  well  as  others,  is  often  seriously  questioned. 
The  remark  is  applied  to  them,  made  in  an  early  case  in  Massa- 
chusetts: "Although  the  opinions  of  professional  gentlemen,  on 
facts  submitted  to  them,  have  justly  great  weight  attached  to 
them,  yet  they  are  not  to  be  received  unless  predicated  upon 
facts  testified  to  either  by  them  or  by  others."  ^  And  in  a  recent 
case  it  is  said :  "  Opinions  are  not  evidence,  according  to  the  rule 
of  the  common  law,  except  in  a  limited  class  of  cases.  In  this 
country,  a  greater  latitude  is  allowed  in  some  of  the  States  than 
in  others,  in  permitting  opinions  to  go  to  the  jury,  when  accom- 
panied by  the  facts  on  which  they  are  based.  ...  In  those  States 
where  the  greatest  latitude  is  allowed,  very  little  weight  is  at- 
tached, however,  to  these  opinions,  unless  supported,  in  the  opin- 
ion of  the  jury,  by  the  facts  on  which  they  are  based.  We  do 
not  see  the  propriety  of  admitting  opinions  of  witnesses  ...  in 
cases  in  which,  from  the  nature  of  the  subject,  they  may  be 
deemed  as  capable  as  the  witnesses  of  forming  opinions."  ^  Ac- 
cordingly it  is  held,  that  the  opinions  of  witnesses  as  to  the  value 
of  land  taken  by  a  railroad  company,  the  damage  done  to  it  by 
the  location  and  construction  of  the  road,  or  the  benefits  derived 
to  other  land  of  the  claimant,  not  taken,  when  attempted  to  be 
set  off  against  the  damages,  cannot  be  admitted,  merely  because 
such  witnesses  reside  near,  and  are  acquainted  with  the  land, 
and  the  manner  in  which  it  is  crossed;  unless  they  are  experts.^ 
And  where,  under  the  Ohio  Statute  of  July  30,  1852,  land  was 
taken  for  constructing  a  railroad,  it  was  held  that  the  opinions 
of  witnesses  as  to  the  amount  of  damage  sustained  were  not  com- 
petent evidence.* 

§  6.  In  an  action  against  a  railroad  for  land  damages,  the  plain- 
tiff cannot  inquire  of  a  witness  Avhether  the  roads  crossing  and 
recrossing  the  railroad  rendered  it  more  or  less  dangerous  for 
horses,  cattle,  teaii.s,  &c.     The  question  is  immaterial.^ 

§  7.  A  witness  may  testify  as  an  expert  to  damage  to  land, 
though  not  a  farmer,  if  acquainted  with  property  and  the  value  of 
lands  in  the  neighborhood ."^     But  in  an  action  for  damage  caused 

1  Dickenson  v.  Barber,  9  Mass.  225.  Ind.    120 ;    Same    v.    Stringer,   ib.    551 ; 

2  Ver  Bosworth,  J.,  4  R.  I.  222.  Atlantic,  &c.  v.  Campbell,  4  Ohio  (N.  S.), 

3  Buff'um  V.  New  York,  &c.,  4  E.  I.     583. 

221.  ^  Pinneo  v.  Lackawanna,  &c.,  43  Penn. 

4  Cleveland,  &c.  v.  Ball,  5  Ohio  (N.  S.),     361. 

568  ;   Evansville,  &c.  v.    Fitzpatrick,   10         6  Van  Deusen  v.  Young,  29  Barb.  9. 


CH.    ]I.]        EVIDENCE   OF   OPINION,    REPUTATION,    CUSTOM,   ETC.  417 

by  negligently  burning  brush,  the  opinions  of  witnesses,  whether 
the  day  was  a  suitable  one,  are  inadmissible :  "  There  could  be 
no  difliculty  ...  in  the  witnesses  stating  to  the  jury  the  position 
of  the  fires  .  .  .  their  number  and  magnitude  ;  the  direction  and 
course  of  the  wind  ;  the  position,  distance,  and  character  of  the 
plaintiff's  property,  and  its  exposure  to  injury  from  that  source. 
The  jurors,  upon  the  question  whether  the  defendant  exercised 
proper  care,  could  form  as  definite  an  opinion  from  the  facts 
stated  by  the  witnesses  as  the  witnesses  themselves.  .  .  .  The 
case  should  be  tried  and  decided  upon  the  opinion  of  jurors,  and 
not  ...  of  witnesses."  ^  So,  in  an  action  for  damage  done  to 
the  plaintiff's  land  by  a  fire  negligently  set  by  the  defendant,  it 
is  not  competent  to  ask  a  witness,  from  what  he  saw,  how  much 
damage  the  fire  did.     The  question  belongs  to  the  jury.^ 

§  8.  The  opinion  of  a  land-surveyor,  as  to  the  true  location  of 
land  in  controversy,  is  not  competent  evidence.^ 

§  9.  A  witness  may  testify  who  was  in  possession  of  the  land 
in  controversy  at  a  time  indicated,  if  he  afterwards  point  out 
particular  acts  of  possession.^ 

§  10.  Another  class  of  cases,  involving  the  competency  of  opin- 
ions, are  those  relating  to  injuries  sustained  upon  highways  and 
railroads  from  alleged  neglect  of  the  defendant  corporation. 
"  The  running  and  management  of  railroad  locomotives  and  trains 
is  so  far  an  art,  outside  of  the  experience  and  knowledge  of  ordi- 
nary jurors,  as  to  render  the  opinions  of  persons  acquainted  with 
the  running  and  management  of  such  locomotives  and  trains,  as 
experts,  admissible  and  proper  testimony."  ^ 

§  10  a.  In  an  action  to  recover  damages  occasioned  by  an 
alleged  defect  in  a  highway,  one  point  in  defence  being  that  the 
accident  was  occasioned  by  the  viciousness  of  the  plaintiff's 
horse  ;  a  witness  may  state  that  the  horse  did  not  appear  to  be 
frightened,  but  rather  a  sulky  dispositioned  horse  to  use.*^ 

§  11.  In  a  suit  against  a  town  for  injury  sustained  by  a  defec- 
tive highway,  the  opinion  of  a  witness  as  to  the  state  of  repair 

1  Eraser?;.  Tupper,  3  Wms.  409;  per  *  Jones  v.  Merrimack,  &c.,  11  Fost. 
Isham,  J.,  ib.  411.  381. 

•'-  Simons  V.  Monier,  29  Barb.  419.  »  Per  Brinkerhoff,  J.,  11  Ohio  (N.  S.), 

3  Blumentiial  v.  KoU,  24  Mis.  113.  335. 

6  Whittier  i-.  Franklin,  4G  N.  H.  23. 
27 


418  EVIDENCE.  [book   IV. 

of  the  road  between  two  aud   three  months  before  the  accident 
is  incompetent.^ 

§  12.  In  an  action  against  a  raih'oad,  for  the  kilHng  of  the 
plaintiff's  horses  by  negligence  in  the  running  and  management 
of  a  locomotive  and  train,  the  engineer,  who  saw  the  horses  when 
they  came  upon  the  track,  and  has  been  engaged  in  running  loco- 
motives and  trains  for  five  years,  is  competent  to  testify,  as  an 
expert,  in  reference  to  their  management,  and  to  give  an  opinion 
whether,  in  view  of  the  distance  between  the  engine  and  the 
horses  when  the  latter  came  upon  the  track,  it  was  possible  to 
avoid  the  injury.  "  If  the  witness  had  been  a  stranger  to  the 
actual  facts,  it  would  have  been  necessary  to  assume  a  state  of 
facts.  But  ...  it  is  fairly  presumable  that  he  knew  something 
of  the  distance  between  the  engine  and  the  horses  when  they 
came  upon  the  track  ;  the  velocity  and  weight  of  the  train  ;  and 
the  time  and  distance  which  would  be  required  to  check  the 
progress  of,  or  stop  the  train."  '^  And  the  following  statement  of 
a  witness  was  held  admissible,  as  being  an  account  of  the  actual 
condition  of  a  road,  not  a  mere  opinion  :  "  A  bad  place  at  the 
side  of  the  road  ;  there  had  been  a  culvert  put  across.  The  con- 
dition of  it  was  bad.  At  the  mouth  of  the  culvert,  it  was  a 
steep  right  down  ;  a  culvert  that  I  thought  a  dangerous  place."  ^ 
But,  iu  an  action  against  a  railroad,  for  an  injury  occasioned  by 
their  locomotive  to  a  man  delivering  wood  from  a  wagon  by  the 
side  of  their  track,  a  witness  cannot  be  asked  his  opinion,  whether 
the  only  mode  of  approach  by  a  wagon  to  the  place  of  delivery 
was  by  way  of  the  track.^  And  the  following  question  and 
answer  are  inadmissible  as  to  a  defect  in  a  road  :  "  What  cause 
or  occasion  he  saw  for  the  accident  ?  "     "  Did  not  see  any."  ^ 

§  13.  In  an  action  against  a  railroad  corporation  by  a  passen- 
ger for  a  personal  injury,  after  several  experts  called  by  the 
plaintiff  have  testified,  upon  a  statement  of  the  facts  and  circum- 
stances of  the  accident,  what  in  their  opinion  threw  the  cars 
from  the  track  ;  the  defendants  may  ask  a  machinist,  connected 
for  many  years  with  railroads,  and  with  the  running  of  cars  and 
engines  upon  them,  and  who  was  in  the  cars  at  the  time,  and  saw 

1  Hutchinson  v.  Methuen,  1  Allen,  33.         *  Robinson  v.  ritchburg,  &c.,  7  Gray, 

2  Bellefontaine,  &c.  v.  Bailey,  11  Ohio     92. 

(N.  S.),  33o;  per  Brinkerlioff,  J.,  ib.  337.  5  Patterson  v.  Colebrook,  QFost.  94. 

3  LunJ  V.  Tyngsborough,  9  Gush.  36. 


CH.    II.]       EVIDENCE   OF    OPINION,    REPUTATION,    CUSTOM,    ETC.  419 

all  these   facts  and  circumstances,   "  What,  in    your  judgment, 
threw  ofF  the  cars  at  the  time  of  the  accident?  "  ^ 

§  14.  In  an  action  for  injury  caused  by  sparks  from  an  engine, 
a  witness  cannot  be  asked  whether  he  considers  it  dangerous 
to  use  a  steam-dredge  without  a  spark-catcher  ;  it  not  l)eing  a 
question  of  science  or  skill,  and  not  falling  within  the  rule  relat- 
ing to  evidence  by  experts,  and  being  itself,  in  fact,  the  very 
"  issue  to  be  tried."  ^ 

§  15.  Other  cases  of  opinion  are  those  relating  to  bodily  health 
and  disease,  as  connected  with  the  injury  for  which  the  suit  is 
brought. 

§  IG.  A  physician,  who  has  attended  a  party  as  such,  on  his 
being  assaulted  and  bruised,  may  as  an  expert  testify  as  to  the 
effect  produced  thereby  upon  his  health  and  mind.^ 

§  17.  Medical  works,  admitted  or  proved  to  be  standard  with 
the  profession,  are  held  admissible  as  evidence,  with  proper  ex- 
planation of  technicalities  or  phrases  not  generall}'  understood.* 

§  18.  The  opinion  of  a  witness,  not  shown  to  have  any  peculiar 
skill  or  knowledge  in  such  a  case,  that  a  wound  which  he  saw  in- 
flicted upon  a  horse  Avas  sufficient  to  cause  his  death,  is  not  com- 
petent evidence.^ 

§  19.  What  constitutes  unsoundness  in  a  horse  is  a  technical 
question.  So  Avhether  a  horse  has  a  particular  disease.  And  a 
witness,  not  an  expert,  cannot  testify  that  a  horse  was  or  Avas  not 
sound,  or  that  he  had  or  had  not  the  heaves.  But  whether  a  horse 
appeared  well  and  free  from  disease,  in  a  general  sense,  is  matter 
of  common  experience ;  and  a  witness,  not  an  expert,  may  testify 
to  that  extent.^ 

§  20.  What  is  a  cruel  whipping,  or  what  are  the  appearances  of 
one,  is  not  a  question  for  experts.  But  witnesses  of  experience 
were  allowed  to  testify  what  number  of  stripes  a  slave  had  in 
their  judgment  received,  judging  from  the  marks  upon  him.  And 
the  common  practice  of  slave-owners  in  correcting  their  slaves 
was  permitted  to  be  shown.''' 

§  21.  In  an  action  for  injuries  to  the  body,  a  person  not  a  phy- 

1  Scaver  v.  Boston,  &c.,  14  Gray,  466.  ^  Harris  v.  Panama,  &c.,  3  Bosw.  7. 

2  Teall  V.  Barton,  40  Barb.  Ul'.  6  Spear  i-.  Richardson,  34  N.   II.  428. 

3  Anthony  v.  Sniitli,  4  Bosw.  503.  See  Willis  v.  Quiniby,  II  Post.  485. 
*  Stoudenmeir  v.  Williamson,  29  Ala.  ''  Hall  v.  Goodsou,  32  Ala.  205. 

558. 


420  EVIDENCE,  [book   IV. 

sician  is  competent  to  testify  that  it  was  necessary  for  a  physi- 
cian to  attend  a  patient  as  long  as  he  did  in  fact  attend  him. 
"  Any  person  of  intelHgence  is  capable  of  judging  of  the  ne- 
cessity of  medical  advice  and  services.  .  .  .  When  it  comes  to 
determine  the  nature  or  the  effects  of  disease,  it  is  different. 
These  are  scientific  questions."  ^ 

§  22.  Although  the  opinion  of  a  physician  as  to  the  length  of 
time  a  disease  has  existed,  predicated  upon  present  symptoms,  is 
not  equal  to  positive  proof;  yet,  where  he  testifies  to  the  exist- 
ence of  certain  diseases  from  personal  examination,  and  thence 
infers  the  length  of  time,  it  is  a  wrong  instruction,  that  "  the 
testimony  of  physicians  is  matter  of  opinion  merely."  ^ 

§  22  a.  In  an  action  by  a  woman  for  assault  and  battery,  by 
which  her  arm  was  alleged  to  have  been  injured ;  her  attending 
physician  and  surgeon  may  testify,  from  what  she  said  to  him 
and  what  he  saw,  to  his  professional  opinion  of  the  extent,  nature, 
and  cause  of  the  injury .^ 

§  22  b.  A  physician,  who  visits  a  patient  once  directly  after 
she  has  been  injured  by  an  accident,  and  attends  her  regularly 
after  the  first  two  weeks,  may  testify,  in  an  action  subsequently 
brought  by  her  for  damages,  what  was  the  mode  and  effect 
of  another  physician's  treatment  during  the  first  two  weeks,  so 
far  as  he  could  judge  from  personal  observation  and  examina- 
tion.* 

§  23.  Opinions  are  sometimes  offered  in  evidence  hypothetically , 
or  as  predicated  upon  a  supposed  or  assumed  state  of  facts.  The 
opinion  of  an  expert  may  be  asked  upon  the  evidence  given  at 
the  trial,  if  he  heard  it,  viewing  it  as  a  case  stated.^ 

§  24.  Medical  testimony  is  admissible,  as  to  the  personal  in- 
juries likely  to  be  produced  under  a  certain  state  of  facts,  the 
precise  facts  being  stated  by  the  witness,  and  the  question  whether 
they  were  proved  being  also  left  to  the  jury.^  So  in  an  action 
for  injuries,  &c.,  the  opinions  of  physicians  as  to  the  nature  of 
the  affection  complained  of,  its  cause  and  its  curability,  are  admis- 

1  Chicago,  &c.  v.  George,  17  111.  170 ;  *  Barber  r.  Merriam,  11  Allen,  322. 

oer  Walker,  J.,  ib.  516.  5  WMght  v.  Hardy,  22  Wis.  348. 

'    2  Bennett  v.  Fail,  26  Ala.  605.  6  Wendell   v.    Mayor,   &c.,   39  Barb. 

3  Fort  V.  Brown,  46  Barb.  366.  329. 


CH.    II.]       EVIDENCE   OF   OPINION,    REPUTATION,   CUSTOM,    ETC.  421 

sible  on  the  facts  as  proved  by  other  witnesses.^  So  in  trover  for 
a  manufactured  article,  which  the  defendant  has  declined  to  ex- 
hibit on  the  trial,  a  witness  who  testifies  that  he  is  not  acquainted 
with  its  market  value,  but  that  he  could  form  an  opinion  of  the 
workmanship  if  he  could  see  it,  may  be  asked  by  the  plaintiff 
his  opinion  of  the  value  of  the  article,  as  described  by  other  wit- 
nesses. The  court  remarked  :  "  After  it  became  manifest  that 
it  was  the  purpose  of  the  defendant  to  conceal  the  articles,  which 
were  of  rather  a  peculiar  character  "  (being  a  double-barrelled 
gun,  pistols,  a  gold  watch  and  chain),  "and  especially  after  he 
had  admitted  them  to  be  the  plaintiff's;  it  was  the  right  of  the 
plaintiff  to  have  such  directions  from  the  judge  as  would  prevent 
the  defendant  from  profiting  by  his  own  wrong  in  getting  the 
property  undervalued."  ^  So  an  experienced  grazier  is  a  compe- 
tent witness,  on  a  hypothetical  statement  of  certain  disturbances 
and  frightening  of  cattle,  to  testify  as  to  the  effect  of  such  dis- 
turbances upon  their  fattening  properties,  though  not,  as  matter 
of  opinion,  that  the  construction  of  a  railroad  through  the  pasture 
where  they  were  feeding  would  disturb  them ;  such  opinion  not 
falling  within  his  peculiar  qualification.^  So,  after  evidence  of  the 
contents  and  value  of  certain  trunks  alleged  to  have  been  con- 
verted by  the  defendant,  the  testimony  of  experts  may  be  received 
to  prove  the  value  of  similar  articles,  although  the  particular  goods 
have  never  been  seen  by  such  witnesses.^  So  in  an  action  on  a 
policy  of  insurance  the  defence  was,  that  the  vessel  was  unsea- 
worthy.  Evidence  of  the  condition  of  the  ship  at  that  time  having 
been  given  in  the  hearing  of  an  expert ;  the  defendant  offered  in 
evidence  his  opinion,  that  a  ship  in  such  condition  could  not  be 
seaworthy ;  and  the  evidence  was  held  to  be  competent.  In  answer 
to  the  suggestion,  of  the  prejudice  which  might  arise  from  asking 
the  opinion  of  a  witness,  on  a  statement  which  might  be  false 
Lord  Ellonborough  remarked,  that  "  the  prejudice  might  be  re- 
moved by  asking,  in  cross-examination,  what  the  witness  would 
think  on  the  statement  of  facts  contended  for  on  the  other  side."^ 
So,  in  a  case  for  running  down  the  plaintiff's  ship,  a  nautical  wit- 
ness may  be  asked,  whether,  having  heard  the  evidence,  and  ad- 

1  Matteson   t:   New   York,  35  N.   Y.  3  Baltimore,  &c.  v.  Tlionipsoii,  10  Md. 
487.                                                                    76. 

2  Beecher  v.  Denniston,  13  Gray,  354  ;  *  Mish  r.  Wood,  34  Peiiii.  451. 

per  Shaw,  C.  J.  *  Beckwith  v.  Sydebotiiain,  1   Camp 

116. 


422  EVIDENCE.  [book    IV. 

mittlng  the  facts  proved  by  the  plaintiff  to  be  true,  he  is  of 
opinion  that  the  colhsion  could  have  been  avoided  by  proper  care 
on  the  part  of  the  defendant's  servants. ^  But,  in  an  action  for 
running  down  the  plaintiff's  vessel,  it  is  held  that  an  expert  can- 
not be  asked,  whether,  having  heard  the  evidence,  he  thought  the 
conduct  of  the  captain  of  the  defendant's  vessel  was  right  or  not.- 
And  experts  must  give  their  opinion  on  an  ascertained  or  sup- 
posed state  of  facts,  not  upon  reading  depositions.^  («) 

§  25.  The  following  miscellaneous  cases  illustrate  the  admissi- 
bility of  testimony  derived  from  so-called  experts  :  where  either 
the  witness  is  claimed  to  be  such  from  his  general  occupation,  or 
his  special  familiarity  with  the  case  in  controversy ;  or  the  report 
or  statement  of  such  party,  though  not  a  witness,  is  offered  on  the 
same  ground. 

§  26.  Engineers,  who  have  taken  the  comparative  levels  of  a 
fountain  of  water,  and  of  certain  agricultural  drains  laid  in  the 
same  lot  of  land  in  which  the  fountain  is  situated,  and  have 
examined  the  character  of  the  subsoil  intervening  between  them, 
are,  as  experts,  competent  to  testify  to  their  opinion  that  the 
drains  do  not  lessen  the  quantity  of  water  in,  or  injuriously  affect, 
the  fountain,  giving  the  facts  upon  which  their  opinion  is  founded. 
A  well-digger,  who  from  the  exercise  of  his  business  in  the 
vicinity  has.  become  acquainted  with  the  character  and  qualities 
in  that  respect  of  the  intervening  subsoil,  is  for  the  same  reason 
competent  to  testify  to  his  opinion,  whether  a  given  thickness  of 
such  intervening  subsoil,  if  undisturbed,  is  impervious  to  water. 
And  a  farmer  and  a  gardener,  who  have  attended  to  and  practised 
the  draining  of  lands  for  the  purpose  of  making  them  productive, 

1  Fenwick  v.  Bell,  1  Car.  &  Kir.  312  2  Sills  v.  Brown,  9  C.  &  P.  601.  See 
(47  E.  C.  L.  311).  Kedf.  on  Railw.  .398,  n. 

8  The  Clement,  2  Curt.  363. 

(a)  The  opinion  of  experts  on  a  state  ions  upon  the  truth  of  a  statement  by 

of  facts  appearing  on  the  minutes  of  the  another  witness,  thougli  they  may  do  the 

testimony  wliich  were  taken  by  the  de-  same  thing,  in  effect,  by  denying  the  fixct 

fendant's  counsel,  and  not  on  the  testi-  stated.      Holliman   v.   Cabanne,  43  Mis. 

mony  as  actually  given  at  the  trial,  is  568. 

inadmissible.      Thayer  v.   Davis,  38  Vt.  If  the  facts  assumed  in  a  hypothetical 

163.  question,  propounded  to  an  expert,  are 

An  expert  cannot  undertake  to  deter-  not  themselves  proved   substantially,  the 

mine  what  is  shown  hy  tlie  evidence,  and  answer  to  such  question  is  not  to  be  con- 

upon  tliat  give  an  opinion.     Phillips  v.  sidered  by  the  jury.     Hovey  v.  Chase,  52 

Starr,  26  Iowa,  349.  Maine,  304. 

Witnesses  should  not  give  their  opin- 


CH.   II.]      EVIDENCE   OF   OPINION,   REPUTATION,   CUSTOM,   ETC.  423 

are  competent,  as  experts,  to  testify  to  their  opinion,  whether  a 
certain  piece  of  land  examined  by  and  known  to  them,  requires 
to  be  drained  to  fit  it  for  cropping.^ 

§  27.  In  an  action  for  a  nuisance,  upon  the  question  wliether 
a  privy  and  pigsty,  placed  by  the  defendant  near  the  dwelling- 
house  of  the  plaintiff,  are  nuisances ;  witnesses  who  have  exam- 
ined the  premises,  and  are  acquainted  by  personal  observation 
with  the  effect  upon  the  air  in  such  cases,  may  testify,  in  connec- 
tion witli  tlie  facts,  to  their  opinions  fovmded  on  the  facts,  tliat  the 
effluvia  must  necessarily  render  the  house  uncomfortable  as  a 
place  of  abode.^  So  evidence  of  opinion  is  admissible  in  relation 
to  a  trespass  upon  crops  by  cattle.^ 

§  28.  It  is  held  that  witnesses,  acquainted  with  the  value  of 
personal  property,  may  testify  to  their  opinion  of  its  value.  The 
rule,  that  witnesses  must  state  facts,  and  not  opinions,  has  no  ap- 
plication to  such  cases.*  (See  §  3.)  Thus  a  witness,  who  testifies 
that  he  knows  a  particular  stove,  and  is  acquainted  with  the  value 
of  stoves,  is  qualified  to  testify  to  its  value. ^  So,  in  replevin  on  a 
distress  for  rent  in  arrear  at  a  share  rent,  a  witness  who  examined 
the  crop,  to  form  an  opinion  as  to  quality,  may  give  that  opinion 
in  evidence.'' 

§  28  a.  So  the  testimony  of  one  who  has  had  for  a  long  time 
the  care  of  an  insane  person,  and  who  has  been  on  various  occa- 
sions, and  for  a  considerable  time,  at  a  house  where  such  person 
stayed,  is  admissible,  to  show  the  value  of  boarding  and  taking 
care  of  him  there.'^  So  the  evidence  of  farmers  and  residents 
in  the  immediate  neighborhood  of  land  is  competent  to  estab- 
lish its  value.  And  this,  although  some  of  them  have  changed 
their  occupation  and  engaged  in  mechanical  pursuits.^  So,  in  an 
action  for  an  injury  resulting  in  deatli,  a  witness  may  give  his 
opinion  as  to  how  long  the  deceased  would  probably  have  been 
useful  to  his  family.^  So  the  opinion  of  millers  and  millwrights, 
as  to  the  quantity  of  grain  which  a  mill  is  capable  of  grinding, 
and  as  to  the  value  of  the  water  running  the  mill  for  milling  pur- 
poses, is  competent  evidence. ^°     So,  to  prove  the  value  of  goods, 

1  Buffum  V.  Harris,  5  R.  I.  243.  ^  Tnwiisend    v.    Bonwill,    5   Ilarring. 

2  Kearney  v.  Farrell,  28  Conn.  317.  474. 

3  Watry  v.  Hilt-en,  IG  Wis.  AKi.  7  Kendall  v.  May,  10  Allen,  59. 

4  Koirers  r.  Ackerman,  22  Barb.    134  ;  »  Robertson  r.  Knapp,  3o  N.  Y.  01. 
Anson  v.  I)\vi<;lit,  18  Iowa,  241 ;  Whitfield  ^  I'enn.  v.  Ilcnder.^on,  51  Penn.  315. 
V.  Wliitfield,  40  IMiss.  352.  JO  Read  v.  Barker,  1  Vroom,  378. 

5  Smith  V.  Hill,  22  Barb.  656. 


424  EVIDENCE.  [book  IV. 

the  testimony  of  a  witness,  who  stated  that  he  was  acquainted 
with  their  vakie  when  an  invoice,  produced  in  court,  was  made, 
and  that  he  had  fixed  prices  to  the  articles  mentioned  therein,  — 
there  being  some  to  which  no  price  was  affixed.  Tlie  ignorance 
of  the  witness  as  to  the  quahty  of  the  goods,  and  their  depreciation 
in  value  since  the  invoice  was  made,  go  merely  to  the  weight  of  the 
evidence.^  So  a  witness  may  testif)'  to  the  value,  in  his  opinion, 
of  certain  stock  on  a  day  in  June,  if  he  dealt  extensively  in  the 
same  stock  during  that  summer.^  So  in  an  action  upon  a  note,  to 
which  the  defence  is,  that  the  note  was  given  upon  an  exchange 
of  horses,  and  that  the  plaintiff's  horse  was  represented  to  be 
sound,  but  afterwards  turned  out  to  be  unsound  ;  a  witness,  who  has 
personal  knowledge  of  the  matter,  may  be  asked  the  actual  value 
of  the  horse  at  the  time  of  the  exchange,  and  maybe  requested,  in 
answering,  to  take  into  consideration  the  subsequent  developments 
of  unsoundness.^  So  where,  in  an  action  against  a  vendor  for  false 
and  fraudulent  representations,  the  consideration  of  the  sale  is 
alleged  to  have  been  a  note ;  evidence  is  admissible  of  the  subse- 
quent negotiation  and  payment  of  the  note,  as  proof  of  the  value 
of  the  consideration,  and  thus  aifecting  the  damages.*  So  in  an 
action  against  a  railroad,  for  the  value  of  twenty-three  bales  of 
cotton,  received  by  the  company,  and  destroyed  while  in  its  pos- 
session ;  the  plaintiff  may  prove  the  weight  of  the  twenty-five 
bales  delivered  to  the  company,  and  of  two  of  the  bales  which 
were  not  lost,  in  order  to  fix  the  weight  of  the  twenty-three 
bales.^ 

§  28  h.  But  opinions  as  to  value  must  relate  to  some  standard 
or  marketable  value.  Opinions  in  regard  to  the  value  of  docjSy 
being  necessarily  dependent  upon  the  fancy  or  predilection 
of  the  witness,  are  not  competent.^  The  same  is  held  in  New 
Hampshire  as  to  the  value  of  horses,  which  is  not  a  question 
of  science,  trade,  or  skill  in  that  State.'^  Nor  is  it  competent 
for  a  witness  to  give  his  opinion  of  the  value  of  a  mill,  after 
having  testified  that  he  had  resided  many  years,  and  owned 
real  estate,  in  the  vicinity  of  the  mill ;  that  he  had  been  assessor 

1  Doane  v.  Garretson,  24  Iowa,  351.  ^  Montsomery  v.   Edmonds,   41   Ala. 

2  Noonan  v.  Ilsley,  22  Wis.  27.  667. 

3  Davis  V.  Elliott,  15  Gray,  90.  6  Brown  v.  Hoburger,  52  Barb.  15. 

<  Morehouse   v.    Northrop,   33   Conn.  '>  Low  v.  Connecticut,  45  N.  H.  870. 

380. 


CH.    II.]       EVIDENCE    OF   OPINION,    REPUTATION,   CUSTOM,    ETC.  425 

of  the  town;  that  he  was  something  of  a  judge  of  real  estate  in 
that  vicinity  ;  that  he  had  no  special  knowledge  of  the  value  of 
mills  on  that  stream ;  and  that  he  had  never  bought,  sold,  owned, 
or  operated  a  mill.^  So  where,  in  an  action  for  killing  a  horse,  a 
witness  stated  that  he  was  acquainted  with  the  value  of  horses, 
but  had  never  seen  the  horse  in  controversy ;  he  cannot  be  asked, 
"  What,  on  the  10th  day  of  May  (the  day  of  the  killing),  was  the 
average  price  of  a  horse  fifteen  or  sixteen  hands  high,  three  or 
three  and  one-half  years  old,  and  sound,  except  the  ring-bone  on 
the  hind  foot,  which  had  been  killed ?"2  So  a  shoemaker,  who 
has  hired  a  brick  building  for  five  years,  occupying  it  with  his 
family,  and  also  underletting  a  part  of  it,  and  who  has  lived  in 
this  country  seventeen  years,  and  during  that  time  has  hired  and 
occupied  difierent  houses  in  difiVsrent  parts  of  the  city,  is  not  com- 
petent to  testify  as  to  the  value  of  lands  and  buildings. ^  Nor  is  a 
witness  competent  to  testify  as  an  expert  to  the  effect  of  dampness 
in  the  cellar  of  a  store  in  lessening  the  value  of  the  yearly  rent  of 
the  building,  whose  experience  consists  merely  in  hiring  stores,  and 
being  acquainted  with  their  value."*  So  in  an  action  for  damages 
resulting  from  a  collision,  mere  opinion  as  to  the  probable  employ- 
ment of  the  vessel,  and  the  amount  of  earnings  if  so  employed, 
is  too  speculative  and  contingent  to  be  the  foundation  of  any 
rule  of  damages.^  So  the  mere  abstract  opinions  of  witnesses, 
concerning  the  diminution  of  value  of  an  estate,  by  the  intro- 
duction of  estimates  founded  on  a  conjectural  basis,  are  inadmis- 
sible.^ 

§  29.  Upon  the  question  of  reason  to  believe  a  debtor  insolvent, 
a  witness,  though  well  acquainted  with  his  business,  cannot  be 
asked,  whether  from  his  knowledge  of  the  debtor  the  business 
was  or  was  not  profitable.'^  But  where  a  witness,  in  answer  to 
the  question,  whether  at  a  certain  time  A  w^as  able  to  pay  his 
debts,  answered,  "  No,  so  far  as  I  know,  I  know  he  was  not ;  "  and 
went  on  to  state  facts  in  regard  to  A's  property  and  liabilities, 
showing  an  intimate  acquaintance  with  A's  condition,  and  his 
utter  insolvency :  held,  as  the  question  did  not  call  for  a  mere 

1  Clark  V.  Rockland,  52  Maine,  68.  5  The  R.  L.  Maybey,  4  Blatchf.  C.  C. 

2  Toledo  I'.  Smith,  25  Ind.  288.  439. 

3  Wlutney  v.  Boston,  U8  Mass.  312.  «  Wesson  v.  Washburn,  13  Allen,  95. 

4  Bonkard  v.  Babcock,  2  Rob.  (N.  Y.)  7  Bartlett  t;.  Decreet,  4  Gray,  111. 
175. 


426  EVIDENCE.  [book   IV. 

opinion,  but,  in  form,  for  a  fact,  the  witness  was  justified  in  stat- 
ing such  fact,  and  the  evidence  was  competent.^ 

§  30.  A  stock-raiser  may  testify  to  the  extent  of  an  injury 
received  by  cattle  from  falling  through  a  wharf.^ 

§  30  a.  Individuals,  who  by  their  personal  observation  had 
acquired  a  knowledge  of  the  character  of  a  stream  and  of  the  dam 
erected  thereon,  were  permitted  to  testify,  whether  in  their  opin- 
ion the  dam  was  suiSciently  strong  to  withstand  the  stream ;  not 
on  the  ground  that  they  were  technically  experts,  acquainted  pro- 
fessionally with  the  force  of  water  in  streams,  and  the  strength  of 
dam  required  to  resist  it,  but  on  the  ground  that,  as  practical  and 
observing  men,  having  knowledge  of  facts  which  such  men  would 
observe  and  understand,  their  judgment  and  opinion  in  connec- 
tion with  tlie  facts  so  observed  were  admissible.  The  court  re- 
marked, that  to  preclude  them  from  giving  their  opinion  would 
close  an  ordinary  and  important  avenue  to  the  truth.^ 

§  31.  A  witness,  though  not  an  expert,  may  testify  what  Jiarcl 
pan  is,  and  whether  any  was  found  in  excavating ;  the  questions 
not  relating  to  a  matter  of  science,  art,  or  skill.^ 

§  32.  In  an  action  against  common  carriers  for  delay  in  carry- 
ing a  quantity  of  potatoes,  whereby  they  were  frozen;  the  opinion 
of  a  witness  maybe  given  in  evidence,  upon  the  question  whether 
it  was  cold  enough  to  freeze  them  in  the  cars  or  storehouse.^ 

§  33.  But  a  witness  cannot  estimate  the  injury  inflicted  by 
fiowage,  unless  he  be  an  expert.*"  So  a  witness,  who  had  on  two 
occasions  examined  cotton  that  had  been  under  water,  he  did  not 
know  how  long,  is  not  an  expert  as  to  the  injury  which  twelve  to 
twenty-four  hours'  submersion  would  probably  cause.'^ 

§  34.  In  an  action  for  the  burning  of  a  dry-house  and  personal 
property,  the  plaintiff  cannot  offer  the  evidence  of  experts,  to 
prove  whether  the  placing  of  wet  staves  upon  the  outside  of  an 
arch,  in  which  a  fire  is  kindled,  is  a  safe  and  prudent  mode  of 
drying  them.  It  is  a  question  depending  on  the  degree  of  heat 
produced  by  the  fire,  —  a  point  of  conflicting  evidence;  and  a 
question  which  the  common  experience  of  the  jury  would  enable 
them  to  determine.^ 

1  Thompson  v.  Hall,  45  Barb.  214.  5  Curtis  v.  Chicago,  &c.,  18  Wis.  312. 

2  Polk  V.  Coffin,  9  Cal.  56.  6  Sinclair  v.  Roush,  14  Ind.  450. 

3  Porter  v.  The  Pequonnoc,  &c.,  17  7  Weaver  v.  Alabama,  &c.,  33  Ala. 
Conn,  24'J.  176. 

4  Currier  r.  Boston,  &c.,  34  N.  II.  498.  «  White  v.  Ballou,  8  Allen,  408. 


CH.    II.]       EVIDENCE   OF   OriNION,    Rr:PUTATION,    CUSTOM,    ETC.  427 

§  35.  A  witness  cannot  state  his  opinion  as  to  tlie  amount  of 
injury  caused  1)V  an  attachment,  though  he  also  state  tlie  facts 
within  his  own  knowledge  on  which  his  opinion  rests. ^ 

§  36.  The  opinions  of  innkeepers  and  others,  that  it  is  negli- 
gence to  keep  money  in  a  locked  trunk  or  portmanteau,  are  not 
admissible  in  evidence.^ 

§  37.  Upon  a  question  as  to  the  sufficiency  of  the  number  of 
officers  and  hands  on  a  steamboat,  at  a  particular  time,  to  run  her 
on  a  particular  river,  the  judgment  of  ordinary  persons,  having  an 
opportunity  of  personal  observation,  and  of  forming  a  correct 
opinion,  and  testifying  to  the  facts  derived  from  that  observation, 
is  admissible.^  So  in  an  action  brought  by  the  owner  of  a  ship, 
for  damages  arising  from  a  collision,  after  the  witness  has  testified 
concerning  the  position  of  the  vessels  and  the  character  of  the 
night,  he  ma}'  be  asked,  whether  a  vessel,  on  such  a  night  and  in 
such  a  place,  could  be  seen  at  a  considerable  distance  from  a  ves- 
sel approaching  the  shore;  and,  if  so,  how  far?* 

§  38.  A  pilot  who  knows  the  place  of  a  disaster,  and  one  in 
charge  of  the  boat  at  the  time,  may  testify  whether  it  was  proper 
to  suffer  the  latter  to  pilot  the  boat  at  the  time  and  place  of  the 
accident.^ 

§  30.  Evidence  of  opinion  as  to  the  location  of  a  railroad, 
founded  on  a  line  run  and  stakes  set  up,  is  inadmissible  to  show 
fraud  in  a  release  of  a  right  of  way,  on  the  ground  that  the  loca- 
tion was  changed.*^ 

§  40.  In  an  action  against  a  railroad  corporation  for  injuries 
occasioned  by  their  locomotive  engine  to  a  traveller  in  the  high- 
way, at  a  place  where  the  county  commissioners  had  authorized 
the  corporation,  upon  certain  conditions,  to  cross  upon  a  level; 
the  record  of  the  county  commissioners,  stating  that  in  their 
opinion  no  flagman  at  the  crossing  was  necessary,  is  not  compe- 
tent evidence  of  due  care  on  the  part  of  the  corporation.' 

§  41.  The  report  of  a  State  fair  committee  upon  agriculture, 
as  to  the  value  of  a  patented  drill,  is  mere  hearsay,  and  inadmis- 
sible.^ 


1  Clanly  ;;.  rallicontc,  24  Tex.  170.  ^  Hill  i'.  Sturponn.  28  INFis.  323. 

2  Tilvlor  V.  Monnot,  4  Ducr,  116.  6  ()i,io,  &o.  r.  Hath,  11  Iiul.  538. 

3  McCreary  v.  Turk,  29  Ala.  244.  7  siiaw  ;-.  Boston,  &c..  8  Gray,  45. 
*  Iniiis  V.  Steamboat,  4  Cal.  5.  ^  Gatling  v.  Xewell,  9  Ind.  572. 


428  EVIDENCE.  [book   IV. 

§  42.  The  official  valuation  of  assessors  is  incompetent  evidence 
of  the  value  of  land  in  controversy.^ 

§  43.  In  an  action  by  a  town  against  the  owners  of  a  dam, 
alleged  to  have  broken  away  from  insufficiency,  the  examination 
and  report  of  persons,  found  by  the  jury  to  have  been  competent, 
made  to  the  defendants  before  the  breaking  away  of  the  dam,  as 
to  its  condition  and  safety,  is  competent  evidence  for  the  defend- 
ants, as  tending  to  show  their  care  and  prudence.^ 

§  43  a.  Somewhat  analogous  to  evidence  of  opinion,  as  distin- 
guished from  facts,  is  that  relating  to  intention.  Evidence,  which 
may  not  seem  to  bear  directly  upon  the  contested  matters  of  fact, 
may  illustrate  the  conduct  of  a  party,  by  throwing  light  on  his 
motives  ;  and,  if  this  is  a  material  inquiry,  such  evidence  should 
not  be  rejected,  although  not  entitled  to  great  weight.^  Thus,  in 
an  action  against  an  overseer  of  highways,  for  "  wilfully  and 
wrongfully  "  maintaining  obstructions  across  a  highway,  whereby 
the  plaintiff  was  injured;  evidence  is  admissible,  tending  to  show 
an  absence  of  any  wrong  intention,  or  any  malice  or  ill-will 
towards  the  plaintiff.^  («)  A  striking  application  of  the  relaxed 
rule,  in  regard  to  the  competency  of  parties  to  testify  in  their 
own  favor,  is  found  in  a  very  late  decision;  that  a  plaintiff, 
charged  with  an  intent  to  defraud  his  creditors,  may  himself  tes- 
tify to  his  own  intention.  "  It  was  a  matter  concerning  which 
he  would  have  the  means  of  positive  knowledge,  and  the  only 
question  would  be  as  to  his  veracity."  ^  So,  on  the  question  of  a 
party's  intention  of  leaving  the  State,  at  the  time  an  attachment 
was  sued  out  against  him,  all  his  contemporaneous  acts  and  con- 
duct are  admissible  in  evidence.''  (If)  So,  in  an  action  to  recover 
damages  for  a  horse  killed  by  overdriving,  the  plaintiff  may  prove 
that  the  defendant  made  an  assignment  of  all  his  property,  on  the 
day  after  the  animal  was  killed,  as  showing  a  consciousness  of 

1  Flint  V.  Flint,  6  Allen,  34.  5  Graves  v.  Graves,  45  N.  H.  323 ;  per 

2  Shrewsbury  v.  Smith,  12  Gush.  177.      Sargent,  J.,  ib.   324 ;  Hale  v.  Taylor,  ib. 

3  Parsons  v.  Harper,  16  Gratt.  64.  405. 

•*  Sherman  v.  Kortright,  52  Barb.  267.  6  Baker  v.  Kelly,  41  Miss.  696. 

(a)  Likewise,  evidence  that  the  defend-         (h)  But  not  his  acts  after  an  attach- 
ant  had  consulted  with  others  in  regard     ment  has  been  sued  out.     Baker  v.  Kelly, 
to  the  obstructions  ;  to  show  that  he  had     41  Miss.  696. 
acted  prudently  and  in  good  faith.     Sher- 
man V.  Kortright,  62  Barb.  267. 


CH.    II.]       EVIDENCE    OF    OPINION,    REPUTATION,    CUSTOM,    ETC.  429 

liability  and  endeavor  to  escape  from  it.^  And  it  is  ])eld,  in  gen- 
eral, that  on  the  question  of  intention  the  declarations  of  a  party 
are  admissible  in  evidence  in  his  favor  ;2  more  especially  the  acts 
and  declarations  of  a  party  ante  litem  motam,  when  he  had  no 
reason  to  mistake  the  facts."^ 

§  44.  Frequent  questions  arise  as  to  the  competency  of  evi- 
dence concerning  reijutation  and  character,  (a) 

§  45.  It  is  said  that  generally,  in  actions  of  tort,  whenever  the 
defendant  is  charged  with  fraud  from  mere  circumstances,  evi- 
dence of  his  general  good  character  is  admissible  to  repel  it.^  (&) 

§  4G.  Evidence  of  bad  character  is  also  under  some  circum- 
stances admissible.  Thus  evidence  of  the  general  bad  character 
and  unfitness  of  a  servant  of  a  corporation,  if  material  to  the  issue, 
cannot  be  objected  to,  by  reason  of  its  tendency  to  prejudice  the 
jury  against  the  corporation,  and  to  increase  the  damages  against 
them.^  So  reputation  as  a  negro-trader  was  held  to  be  evidence, 
on  a  question  of  selling  a  slave  to  be  exported.*^ 

§  47.  But  it  is  held,  in  general,  that  evidence  of  character  can 
be  offered  only  when  it  is  in  issue,  and  with  special  reference  to 
the  nature  of  the  question  raised.'^  In  civil  suits,  evidence  of 
good  character  is  not  admissible  to  rebut  imputations  of  fraud  or 
misconduct.®  Thus,  in  trover,  evidence  of  the  defendant's  good 
character  for  honesty  and  integrity  is  inadmissible,  although  the 
plaintiff's  testimony  virtually  charged  him  with  embezzlement.^ 
And  character  cannot  be  set  up  as  a  defence,  unless  directly  in 
issue,  and  material  to  the  question  of  damages  —  as  in  slander  (c) 
and  seduction ;  even  though  the  case  is  virtually  one  of  alleged 
embezzlement.^^     And  numerous  cases  are  found  in  which  such 

1  Banficld  v.  Whipple,  10  Allen,  27.  ^  Taylor  r.  Horsey,  5  Harrins-  131. 

■^  Young  V.  Power,  41  IMiss.  197.  "  Church  r.  Drummond,  7  Ind.  17. 

'  Baker  v.  Kelly,  41  Miss.  6'J6.  8  Boardman  v.  Woodman,   47   N.  H. 

*  1  Greenl.  Ev.  123.  120 ;  IMorris  v.  Ilazlewood,  1  Bush,  208. 

5  Vicksburg,  &c.  v.  Patten,  31  Miss,  •'  Wright  v.  McKee,  37  Vt.  IGl. 

156.  i"  lb. 

(a)  Testimony  touching  reputation,  that  the  law  presumed  that  liis  character 
founded  on  opinions  expressed  post  lit<  ui  was  good  in  the  absence  of  evidence  to 
motam,  is  inadmissible,  lieid  v.  Reid,  2  the  contrary.  Goggans  v.  Monroe,  31 
Green  (N.  J.),  101.  Ga.  331. 

(b)  Upon  the  trial  of  an  action  for  ma-  (c)  In  an  action  for  slander,  the  plain- 
licious  prosecution,  the  defendant's  conn-  tifi'  may  introduce  evidence  of  good 
sel  having  argued  that  the  plaintiff's  character,  though  unassailed  except  by 
character  was  bad,  it  was  held  to  be  error  the  charge  sued  upon,  fcjhroyer  v.  Miller, 
for  the  court  to  refuse  to  instruct  the  jury  3  W.  Va.  158. 


430  EVIDENCE.  [book    IV. 

evidencG  has  been  rejected.  Thus,  in  an  action  against  the 
owner  of  a  horse  and  cart,  for  tlie  negligence  of  his  servant,  re- 
sulting in  injuries  to  a  horse  belonging  to  the  plaintiff;  evidence 
of  the  general  reputation  of  the  servant  as  a  reckless  driver,  or 
that  he  has  been  careless  on  other  occasions,  is  inadmissible.^  (a) 
So  in  an  action  against  a  railroad  corporation,  to  recover  damages 
sustained  by  a  person  in  a  carriage  on  a  highway,  by  means  of 
collision  with  a  locomotive  engine  of  the  defendants ;  the  care- 
lessness of  the  driver  of  the  carriage  cannot  be  proved  by  common 
reputation.^  So  evidence  is  inadmissible  of  the  professional  repu- 
tation of  the  physician,  who  was  employed  by  the  plaintiff  to 
dress  his  wounds  and  effect  a  cure ;  though  it  would  be  compe- 
tent to  prove  that  the  plaintiff's  injuries  were  wholly  or  partially 
the  result  of  improper  treatment  on  the  part  of  the  physician.^ 
So  evidence,  that  the  general  reputation  of  the  plaintiff  among 
his  neighbors  was  that  he  was  a  tricky  man,  and  would  take  lib- 
erties with  paper  in  his  hands,  thereby  altering  its  character,  is 
not  sufficient  to  prove  that  he  had  perpetrated  a  fraud  on  the 
defendant ;  nor  is  it,  when  followed  by  testimony  showing  that 
the  note  given  in  evidence  had  been  altered,  sufficient  or  admis- 
sible to  prove  forgery  or  alteration  of  the  note  by  the  plaintiff.* 
So,  in  a  suit  against  an  officer  to  recover  goods  attached,  and 
which  are  claimed  by  the  plaintiff  to  have  been  purchased  from 
him  by  fraud,  evidence  of  the  good  reputation  for  honesty  and 
moral  worth  of  the  purchaser,  who  has  testified  in  the  case,  is 
inadmissible.^  So  in  an  action  by  the  assignee  of  an  insolvent 
debtor,  for  property  alleged  to  have  been  fraudulently  conveyed, 
evidence  is  not  admissible  of  the  defendant's  general  reputation 
for  honesty  and  integrity.*^ 

§  48.  In  an  action  against  a  railroad,  the  plaintiff  having  at- 
tempted to  prove  that  a  flagman  employed  by  the  company  was  a 
careless  and  intemperate  person,  the  defendants  may  show,  by 
persons  who  have  seen  his  conduct,  though  not  experts,  that  he 
was  careful,  attentive,  and  temperate."     And  similar  evidence  is 

1  Jacobs  V.  Duke,  1  E.  D.  Smith,  271.  *  Martin  v  Good,  14  Md.  398. 

2  Baldwin    v.    Western,   &c.,   4  Gray,  ^  Atwood  v.  Dearborn,  1  Allen,  483. 
333.  6  Heywood  v.  Eeed,  4  Gray,  574. 

3  Thorne  v.  California,  &c.,  6  Cal.  232.  ^  Gahagan  i-.  Boston,  &c.,  1  Allen,  187. 

(a)  In  an  action  to   recover   damages  were   safe  and  prudent   men   in  driving 

done  by  cattle  which  the  defendant  by  and  conducting  cattle  through  the  city, 

his  servants  was  driving,  evidence  is  ad-  Ficken  v.  Jones,  28  Cal.  618. 
missible  in  his  favor,  that  such  servants 


CH.    II.]       EVIDENCE   OF   OPINION,   REPUTATION,    CUSTOM,    ETC.  431 

sometimes  admitted,  as  responsive  to  the  averments  of  the  decla- 
ration. Thus,  in  a  suit  against  an  officer  for  "  carelessly,  negli- 
gently, wilfully,  and  corruptly  "  taking  insufficient  sureties  in  a 
replevin  bond,  evidence  that  he  acted  honestly  and  in  good  faith, 
believing  the  security  taken  to  be  sufficient.'  But  in  an  action 
against  a  steamboat  for  the  loss  of  a  horse  by  explosion  of  the 
boiler,  alleged  to  be  caused  by  racing  ;  the  good  condition  of  the 
boiler,  and  good  management  of  the  boat,  cannot  be  shown.- 

§  49.  In  an  action  to  recover  damages  for  an  assault  and  bat- 
tery, committed  by  the  son  of  the  owner  of  a  house,  upon  one 
who  had  wrongfully  intruded  into  the  house,  but,  in  compliance 
with  orders  given  to  him,  had  left  and  was  going  away ;  evi- 
dence is  incompetent,  in  mitigation  of  damages,  that  the  plain- 
tiff was  of  bad  repute  in  the  community,  and  was  accompanied 
by  his  paramour,  who  was  also  of  bad  repute  in  the  community ; 
although  the  plaintiff's  counsel,  in  opening  his  case,  and  thruugh- 
out  the  trial,  has  claimed  damages,  on  the  ground  that  the  assault 
and  battery  were  an  indignity  calculated  to  injure  the  plaintiff's 
standing  and  reputation  in  the  community.  Upon  the  points  in- 
volved the  court  remarked  as  follows:  "  The  fact  that  a  man  bears 
a  bad  character,  or  keeps  company  with  persons  of  evil  repute, 
furnishes  no  just  provocation  or  palliation  for  doing  violence  to 
his  person.  He  may  forfeit  the  good  opinion  of  his  fellow-men, 
and  become  an  object  of  pity  and  contempt,  .  .  .  but  we  know  of 
no  principle  of  law  or  ethics  on  which  for  such  a  cause  impunity 
is  to  be  granted  to  those  who  inflict  injury  upon  another,  or  full 
indemnity  is  to  be  denied  to  a  party  for  a  violation  of  the  sanctity 
of  his  person.  The  facts  which  took  place  in  the  house  .  .  .  had 
no  such  connection  with  the  assault  as  to  form  part  of  the  res 
gestce.  .  .  .  The  plaintiff  had  left  the  house.  .  .  .  The  motive 
which  led  the  defendant  to  order  the  plaintiff  to  leave  the  house 
was  wholly  immaterial.  He  had  a  right  to  give  such  an  order, 
and  the  plaintiff  was  bound  to  obey  it.  .  .  .  Counsel  often  make 
exaggerated  and  unfounded  claims  in  behalf  of  their  clients. 
These  are  to  be  corrected  by  countervailing  statements,  .  .  .  and 
by  proper  instructions."^  (a) 

•     1  Howe  V.  Mason,  12  Iowa,  202.  »  Bruce  f.  Priest,   5  Allen,   100 ;  per 

2  Agnew  V.  Steamer,  &c.,  27  Cal.  428.     Bigelow,  C.  J.,  ib.  102. 

(a)  To  prove  the  bad  character  of  a  bad  conduct  and  vicious  acts  is  admissible, 
horse,  evidence  of  particular  instances  of    Whitticr  v.  ITranklin,  4(3  N.  H.  23. 


432 


EVIDENCE. 


[book  IV. 


§  50.  Somewhat  analogous  to  character  or  reputation,  is  public 
rumor  or  report. 

§  51.  In  an  action  for  killing  a  slave,  after  proof  that  the  de- 
fendant shot  some  one  in  the  night-time,  near  a  particular  spot, 
at  a  stated  hour,  and  that  the  slave  was  found  about  that  time, 
near  the  place,  badly  wounded  with  gunshot ;  it  is  competent  to 
show,  that  there  was  no  rumor  or  report  in  the  neighborhood, 
that  any  other  person  had  been  shot  about  that  time  and  near 
that  place.i  But,  on  a  question  whether  a  defendant  had  intro- 
duced slaves  into  the  State  for  sale  contrary  to  the  statute,  it 
is  not  admissible  to  show  a  general  ignorance,  among  the  public 
and  the  bar,  of  the  existence  of  the  statute,  in  order  to  prove  that 
the  defendant,  a  slave-trader,  was  ignorant  of  it,  so  as  to  show 
that  his  declarations  were  made  in  good  faith,  and  not  with  intent 
to  evade  the  statute.^  And  common  report  of  a  party's  intention 
in  purchasing  goods  is  not  competent  to  charge  the  vendor  with 
knowledge  of  such  intention.^ 


1  Newby  v.  Jackson,  7  Jones,  351. 

2  Holman  v.  Murdock,  34  Miss.  275. 

In  an  action  against  a  husband  for  his 
wife's  board,  he  set  up  her  adultery  and 
desertion.  Held,  the  fact  that  she,  while 
separated  from  him,  received  at  her 
boarding-house  visits  from  two  or  more 
men,  will  not  warrant  evidence  of  their 
bad  reputation  for  chastity.  Clement  v. 
KirabaU,  98  Mass.  535. 

In  an  action  for  fraud  in  the  sale  of 
the  business  of  a  practising  physician, 
alleging,  that  the  plaintiflF  falsely  repre- 
sented that  the  business  was  the  regular 
allopathic  practice  ;  the  plaintiff,  for  the 
purpose  of  proving  that  the  defendant's 
practice  was  irregular  and  disreputable, 
cannot  offer  evidence  of  the  general  repu- 
tation of  the  business  at  the  time  of  the 
sale.     Bradbury  v.  Bardin,  34  Conn.  452. 

In  an  action  for  falsely  representing 
that  A,  a  tradesman,  was  trustworthy, 
the  defendant  may  inquire  of  tradesmen 
of  the  same  town  as  to  the  general  repu- 
tation of  A  for  trustworthiness.  Sheen 
V.  Bumpstead,  2  Hurl.  &  Colt.  193. 

The  words  "doubtful  credit"  are  very 
comprehensive,  and  are  understood  to 
relate  to  reputation  or  standing  in  the 
community,  as  distinguished  from  the 
estimate  of  particular  individuals.  In 
that  sense,  the  doubtful  credit  of  a  party 
is  a  matter  of  fact,  of  which  persons  in 
the  community  may  be  presumed  to  have 
knowledge.  Merchants'  v.  Bank,  24  Md. 
12. 


3  Hedges  v.  Wallace,  2  Bush,  442. 

Tradition,  reputation,  and  hearsay  are 
admissible,  in  a  suit  for  land,  to  show 
whether  one  of  the  lines  was  formerly 
bounded  on  a  public  highway.  St.  Louis 
V.  Risley,  40  Mis.  356. 

The  declarations,  not  under  oath,  of 
disinterested  men  having  means  of  knowl- 
edge and  since  deceased,  on  questions  of 
monuments  and  boundaries,  are  compe- 
tent as  evidence  of  reputation ;  but  not 
in  relation  to  acts  of  ownership  or  posses- 
sion, because  such  facts  cannot  be  proved 
by  reputation.  Wendell  v.  Abbott,  45 
N.  H.  349. 

Such  declarations  of  deceased  persons, 
who  have  actual  knowledge  as  to  the 
boundaries,  or  who  from  their  connection 
with  the  property  itself  have  peculiar 
means  of  knowledge,  made  when  they 
had  no  interest  to  misrepresent,  and  when 
upon  or  in  the  immediate  vicinity  of  the 
boundary,  and  pointing  it  out,  may  be 
received  as  to  the  boundary,  when  from 
lapse  of  time  there  can  be  no  reasonable 
probability  that  evidence  can  be  obtained 
from  those  who  have  actual  knowledge 
on  the  subject.  Wood  v.  Willard,  37  Vt. 
377. 

Title  to  real  estate  cannot  be  attacked, 
by  showing  the  bad  character  of  one  of 
the  parties  through  whose  hands  the  title 
has  passed.  Boatright  v.  Porter,  32  Ga. 
130. 


CH.    II.]       EVIDENCE  OP   OPINION,   REPUTATION,    CUSTOM,    ETC.  433 

§  52.  To  prove  that  a  mortgage  was  taken  witliout  reasonable 
cause  to  believe  tlie  mortgagor  insolvent,  the  moi-tgagoe  may 
show  inquiries  made  of  competent  |)ersons,  and  their  replies 
thereto.^  So  a  preferred  creditor  may  prove,  that  he  had  no 
reasonable  cause  to  believe  the  debtor  insolvent,  by  his  pecuniary 
standing  among  his  neighboi's,  creditors,  and  all  others  having 
business  with  him.'^ 

§  53.  Questions  also  arise  as  to  evidence  of  custom  and  usage,  (^ci) 
Of  course  a  party  cannot,  in  general,  set  up  his  own  habitual 
wrong  or  negligence  as  a  justification  of  any  particular  act  for 
which  a  suit  is  brought.  ]3ut,  in  a  late  case,  and  in  justification  of 
the  decision  arrived  at,  the  following  important  distinctions  were 
laid  down  by  the  court:  "  It  was  not  allowed,  for  the  purpose  of 
sliowing  that  the  com])any  exerted  the  same  degree  of  diligence 
in  this  as  tliey  did  in  other  like  instances  ;  nor  was  it  ruled  that 
they  would  be  exonerated  from  responsibility  on  the  occasion 
complained  of,  if  they  acted  up  to  the  standard  which  they  had 
themselves  established.  If  this  had  been  the  object  of  the  evi- 
dence, it  ought  to  have  been  rejected.  But,  upon  the  more  broad 
and  general  ground  of  exhibiting  their  system  and  plan  of  action, 
the  means  provided  for  conducting  the  great  enterprise  confided 
to  their  management,  the  evidence  proposed  seems  to  be  pecu- 
liarly fit  and  appropriate,  if,  indeed,  it  is  not  to  be  regarded  as 
absolutely  indis[)ensable.  Without  it,  it  is  difficult  to  see  how  .  .  . 
the  jui-y  could  determine  .  .  .  whether  the  defendants  were  supine 
and  negligent,  or  acted  with  the  vigor  and  efficiency  demanded  by 
the  rule  requiring  the  exercise  of  ordinary  care  and  prudence."^ 
Accordingly,  in  defence  of  an  action  against  a  gas  company  for 
injury  occasioned  by  their  neglect  in  repairing  a  leak  in  their 
pipes,  evidence  of  their  system  and  course  of  business  in  regard 
to  complaints  of  such  leaks  was  held  admissible.^ 

§  o-i.  But  evidence  of  a  custom,  that  shipping-masters  act  merely 

1  Boarrlman  v.  Kibliee,  10  Cush.  545.  ^  Per  Merrick,  J.,  Holly  v.  Boston,  &c., 

2  Bartlett   v.    Decreet,   4   Gray,   111;     8  Gray,  134. 
Heywood  v.  Heed,  ib.  574.  <  lb.  123. 

{a)  As     bearing     upon    the     question  custom  to  weigh  and  mark  goods  as  they 

whetlier  a  railroad  had  received  cotton  were  taken  for  transportation,  the  goods 

for  trans]K)rtati(>n  as  a  common  carrier,  in  question  not  having  been  weighed  and 

and   as   cuntirniatory  of  the  statement  of  marked.     Vaughan  v.  Kaleigh,  03  N.  C. 

an  agent   tiiat  it  had  not ;  the  company  11. 
may  ask  the  agent  whether  it  was  not  the 

2^ 


434  EVIDENCE.  [book   IV. 

as  owners'  agents,  and  are  not  themselves  responsible,  is  inadmis- 
sible, in  an  action  against  a  shipping-master  for  neglect  in  notify- 
ing the  plaintiff,  who  had  shipped  for  a  voyage,  of  the  time  of 
sailing,  so  that  he  lost  his  employment.^  So  where,  in  a  suit 
against  a  railroad  company  for  an  injury  received  while  passing 
along  a  highway,  an  issue  is  made  upon  the  unreasonable  or  neg- 
ligent conduct  of  the  company  in  the  use  of  the  highway  at  the 
time  complained  of:  its  usage  at  other  times  has  no  legitimate 
bearing  upon  this  issue  ;  and  evidence  respecting  such  usage  is 
incompetent. 2  So,  in  an  action  against  a  master  for  the  excessive 
punishment  of  a  scholar,  evidence  is  not  admissible  in  defence, 
that  the  defendant's  ordinary  management  is  mild  and  moderate.^ 
Though  it  may  be  otherwise  in  regard  to  the  question,  whether 
the  punishment  was  wanton  and  malicious.  And  upon  this  ques- 
tion it  is  competent  to  show  that  the  same  instrument  of  punish- 
ment was  used  in  other  schools  in  the  vicinity.*  So,  in  an  action 
for  shooting  a  colt,  evidence  that  the  colt  was  in  the  habit  of  tres- 
passing on  neighboring  cornfields,  when  unsupported  by  further 
evidence,  is  not  admissible,  as  showing  that  the  colt  was  shot  by 
some  person  so  trespassed  on.^ 

§  55.  Character  must  be  proved  by  evidence  of  general  repu- 
tation, or  general  bad  conduct,  not  by  particular  facts.^  Thus 
character  for  care,  skill,  truth,  &c.,  though  growing  out  of  the 
special  acts  of  a  party,  cannot  be  established  by  proof  of  such  acts, 
but  only  by  evidence  of  general  reputation.  It  is  truly  remarked : 
"  Character  grows  out  of  special  acts,  but  is  not  proved  by  them. 
Indeed,  special  acts  do  very  often  indicate  frailties  or  vices  that 
are  altogether  contrary  to  the  character  actually  established,  and 
sometimes  the  very  frailties  that  may  be  proved  against  a  man 
may  have  been  regarded  by  him  in  so  serious  a  light  as  to  have 
produced  great  improvement.  .  .  .  Ordinary  care  implies  occa- 
sional acts  of  carelessness  ;  for  all  men  are  fallible  in  this  respect, 
and  the  law  demands  only  the  ordinary."^ 

§  56.  In  a  suit  in  equity,  to  recover  damages  for  a  nuisance  to 
buildings,  arising  from  the  unlawful  erection  and  maintenance  of 
steam-engines  and  furnaces,  as  well  as  for  an  injunction,  evidence 

1  Maguire  v.  Woodside,  2  Hilt.  59.  5  Dean  v.  Blackwell,  18  111.  336. 

'^  Gahagan  t'.  Boston,  &c.,  1  Allen,  187.  ^  Swift  v.  Dickerman,  31  Conn.  285. 

'  Lander  u.  Seaver,  32  Verm.  114.  "^  Frazieri'.  Pennsylvania,  &c.,  38  Penn. 

*  lb.  104  ;  per  Lowrie,  C.  J.,  ib.  110. 


CH.    II.]       EVIDENCE   OP   OPINION,    REPUTATION,   CUSTOM,   ETC.  435 

of  the  general  character  of  the  neighborhood,  of  the  various  kinds 
of  business  carried  on  there,  and  of  the  class  of  tenants  by  whom 
dwelling-houses  in  that  vicinity  are  usually  occupied,  is  competent 
upon  the  question  of  damages;  but  not  that  a  particular  insurance 
compan}'  had  increased  the  rate  of  insurance  on  the  houses.^ 

§  57.  A  right  of  way,  claimed  by  prescription  in  a  particular 
line,  cannot  be  disproved  by  evidence  that  strangers  were  accus- 
tomed to  cross  the  land  in  different  courses.^ 

1  Call  V.  Allen,  1  Allen,  137.  2  Smith  v.  Lee,  14  Gray,  473. 


436 


EVIDENCE. 


[book    IV. 


CHAPTER    III. 


ADMISSIONS    AND    DECLARATIONS. 


1.  Admissiions  of  a  party  against  him- 
self. 

2.  Effect  of  admissions;  how  controlled 
and  construed;  implied  admissions. 

6.  .\dmissions  made  in  attempts  to  com- 
promise. 

8.  Admissions  of  agents,  officers,  &c.; 
admissions  connected  or  unconnected  with 
acts;  questions  of  time. 

10  a.  Declarations,  of  parties  not   against 
their  interest,  and  of  third  persons;  ?'es  c/estce. 
11.  In  case  of  Ijodily  injury  or  disease. 
15.  Boundary  and  title- 
IB.  In  case  of  legal  process. 

17.  IMiscellaneous  examples. 

18.  Limitations  of  the  general  rule;  must 


be  simply  explanatory,  rot  narrative  ;  ques- 
tions of  time,  )>lace,  motive,  and  purpose. 

24.  Declarations,  &c.,  of  a  joint  party. 

26.  Declarations  in  a  party's  own  favor, 
accom|ianying  acts;  res  gcsta. 

28.  Estoppel  bv  admission. 

30.  Acts  and  declarations  of  third  persons. 

31.  As  to  possession. 

35.  Declarations  of  persons  connected  with 
a  party. 

39.  Declarations  in  case  of  alleged  fraud. 

44  rt.  In  reference  to  title. 

47.  Evidence  of  the  acts  of  a  party  or  his 
agerit. 

49.  Declarations  in  writing. 

63.  Irrelevant  declarations. 


§  1.  The  admissions  of  a  party  to  the  suit  against  himself  are 
competent  evidence  for  the  other  party,  (a)  In  general,  the 
relation  of  the  former  to  the  subject  of  admission,  at  the  time  of 
making  it,  is  held  to  determine  the  question  of  competency. 
Thus  the  plaintiff  sued  the  defendant  for  entering  and  digging 
a  ditch  upon  his  land.  The  defendant  justhBed,  on  the  ground 
that  he  only  cleared  out  an  ancient  ditch,  as  he  had  a  right  to  do, 
to  drain  his  own  land  above  the  plaintiff's.  The  plaintiff  formerly 
owned  the  defendant's  land,  and  sold  it  to  him;  and  A  formerly 
owned  the  plaintiff's  land.  Held,  declarations  of  the  plaintiff  to 
the  defendant,  while  owner  of  the  defendant's  land,  and  while 


(n)  But  in  an  action  of  trespass,  by  a 
minor,  through  his  fatlier  as  next  friend, 
the  father's  declarations  were  excluded 
from  the  evidence,  having  been  offered  by 
the  defendant.  Hanuner  v.  Pierce,  5  Har. 
304. 

In  an  action  brought  by  a  father  for 
the  death  of  his  minor  son,  caused  by  the 
negligence  of  a  railroad,  the  defendants 
cannot  introduce  tlie  declarations  of  the 
sou,  made  the  day  following  tiie  injury, 


as  to  the  cause  of  the  accident.     Ohio  v. 
Hammersley,  '28  Ind.  371. 

Declarations  of  a  father  in  respect  to 
injuries  received  by  his  infant  son  are  not, 
witliout  other  evidence  than  the  father's 
declarations  that  he  was  then  the  son's 
agent,  admissible  in  favor  of  the  defend- 
ant in  an  action  brought  by  the  father  as 
the  son's  next  friend.  Nor  evidence  of 
who  was  present  at  such  conversation,  if 
the  son  was  not.  Haney  v.  Donnelly,  12 
Gray,  361. 


CH.    III.]  ADMISSIONS    AND    DECLARATIONS.  437 

negotiating-  the  sale  of  it  to  the  defendant,  and  made  apparently 
as  an  inducement  to  purchase,  that  he  had  a  rigiit  t(^  tirain  it  over 
A's  land,  were  admissible  in  evidence.  It  was  properly  left  to 
the  jury,  whether  he  intended  something  which  would  pass  by  the 
conveyance^  So  declarations  of  a  party,  as  to  his  title  to  prop- 
erty in  controversy,  made  in  the  pleadings  in  a  prior  suit  between 
him  and  another  party,  are  admissible  against  him,  not  as  an 
estoppel,  but  as  evidence  in  favor  of  a  person  not  a  party  to  that 
8uit.2 

§  1  a.  Admissions  may  be  implied.  Thus  declarations  or  state- 
ments made  in  the  presence  of  a  party  are  received  in  evidence, 
not  as  evidence  in  themselves,  but  to  understand  what  reply  he 
should  make.  If  he  is  silent  when  he  ought  to  have  denied,  the 
presumption  of  acquiescence  arises.'^  («) 

§  2.  The  effect  of  an  admission,  though  in  its  terms  direct  and 
unqualified,  may  be  controlled  by  pioof  of  the  circumstances 
under  which  it  was  made.  (See  §  4.)  Thus,  in  an  action  for  in- 
jury to  a  passenger  on  a  railroad  car,  testimony,  that  at  the  time 
of  the  accident  and  shortly  afterwards  the  [ilaintiif  said  the  acci- 
dent was  attributable  to  his  own  fault  ;  tiiat  if  he  had  been  in  his 
seat  it  would  not  have  occurred  ;  is  admissible,  but  not  conclusive, 
the  plaintiff  at  the  time  suffering  severe  bodily  injuries,  and  not 
knowing  the  state  of  the  road.'*  So  in  an  action  for  assault  and 
battery,  there  being  no  direct  evidence  that  the  injury  was  caused 
by  tlie  defendant,  two  witnesses  testified,  that  shortly  after  the 
injury  they  heard  the  plaintiff  charge  the  defendant  with  causing 
it,  and  did  not  hear  the  defendant  deny  it.  Two  other  witnesses 
testified,  that  about  an  hour  before  this  they  heard  the  same 
charge  made  by  the  plaintiff,  and  the  defendant  denied  it.  Held 
a  correct  instruction,  that,  if  the  plaintiff  charged  the  defendant 
with  having  committed  the  assault,  and  he  at  the  same  time 
denied   it,  this   iurnished  no  evidence   against  him ;    but,  if  he 

1  Stetson  V.  Howland,  2  Allen,  501.  <  Zemp   v.   Wilmington,   &c.,  9  Rich. 

'■J  Warfield  v.  Lindell,  30  Mis.  272.  84. 

3  Gibney  ;;.  Marchay,  34  N.  Y.  301. 

(fl)  In  an  action  of  detinue,  the  defend-  vided  one-third  under  a  deed  from  A,  the 

ant  may  show   by  the  county  assessor's  plaintiff's  "rantor,  and  allesicd  possession 

books,  that,  for  many  years  last  preucdinji  for  twenty  years  under  a  deed.     Held,  he 

the  trial,  the  plaintiff's  intestate  had  never  mijiht  offer  in  evidence  a  deed  executed 

given  in  tlu'  jiropcrty  as  his  own.     Whit-  jointly  by  himself  and  A  for  a  part  of  the 

field  ".  Wliittii'iti,  10  Miss.  352.  jirojierty,  as  teiidiiiti  to  show  his  claim  of 

The  defendant  in  an  action  to  quiet  title,  and  a  recojinition  of  it  hy  A.     Du- 

title  answered,  claiming  title  to  an  undi-  mont  v.  Dufore,  27  Ind.  263. 


438  EVIDENCE.  [book    IV. 

remained  silent,  the  jury  miglit  regard  it  as  an  admission,  or  give 
it  such  weight  as  tiiey  miglit  think  it  entitled  to;  that  the  jury 
would  not  probably  conclude  that  the  defendant,  after  he  had 
once  emphatically  denied  the  accusation,  would  be  called  upon  to 
deny  it  again,  if  the  accusation  were  repeated;  but  that  it  was 
left  to  the  jury,  under  the  rules  which  had  been  stated  as.  to 
remaining  silent,  to  give  such  weight  to  the  defendant's  silence, 
when  the  charge  was  repeated,  as  they  thought  it  entitled  to.^ 

§  3.  But,  on  the  other  hand,  a  mere  implied  admission  may 
control  the  effect  of  direct  testimony.  Thus,  to  prove  delivery  of 
a  lost  trunk,  the  defendants  adduced  the  deposition  of  the  clerk 
of  a  steamer,  running  from  Montgomery  to  New  Orleans,  where 
the  trunk  was  directed,  who  stated  that  it  was  delivered,  and  a 
receipt  taken,  which  was  subsequently  lost.  The  address  of  the 
trunk  received  was  different  from  that  alleged  to  have  been 
delivered  ;  and  in  reply  to  numerous  inquiries  the  defendants 
said,  ''  We  have  written  all  along  the  line,  and  will  get  it  to  you 
as  soon  as  possible."  Held,  that  delivery  was  not  proved. ^ 
Admissions  by  an  innkeeper,  of  the  loss  of  the  goods  of  a  guest, 
are  sufficient  evidence  thereof  to  authorize  proof  of  their  value, 
though  the  innkeeper,  called  by  the  plaintiff,  testifies  that  he  made 
the  admissions  relying  solely  on  the  guest's  statements.-^ 

§  3  a.  Where  the  plaintiff  has  made  an  equivocal  admission  as 
to  the  identity  of  a  prior  invention  with  his  own;  the  question  of 
identity  is  for  the  jury,  not  for  the  court.* 

§  4.  Implied  admissions  are  liberally  construed,  with  reference 
to  their  relevancy  or  pertinency  to  the  point  in  question.  (See 
§  2.)  In  trespass  against  a  schoolmaster,  for  excessive  punishment 
of  a  scholar  on  account  of  misconduct  out  of  school :  it  is  compe- 
tent to  show,  that  at  a  former  trial  no  such  claim  was  made,  but 
only  that  the  master  had  no  right  to  punish  for  such  misconduct ; 
as  tending  to  prove  that  such  claim  on  the  then  pending  trial  w^as 
unfounded.^  So  in  an  action  of  trespass  against  the  officers  of  a 
school  district,  for  the  taking  and  sale  of  personal  property  in 
payment  of  a  school-house  tax,  the  defendants  may  offer  in  evi- 
dence a  bond  for  the  delivery  of  the  property,  executed  by  the 

1  Jewett  V.  Banning,  23  Barb.  13  ;  21  4  Turrill  v.  The  Michigan,  &c.,  1  Wall. 
N.  y.  (7  Smith)  27.  491. 

2  Stadlauker  v.  Combs,  9  Rich.  193.  5  Lander  v.  Seaver,  32  Verm.  114. 

3  Ivitchens  v.  Robbins,  29  Geo.  713. 


CH.    III.]  ADMISSIONS    AND    DECLARATIONS.  439 

plaintiff.^  So  a  lease  of  a  mill  to  A,  containing  stipulations  as  to 
the  amount  of  water-power  to  be  furnished  to  the  lessee,  and  as 
to  tlie  height  to  which  B,  the  defendant,  shall  have  the  right  to 
raise  another  dam  lower  on  the  same  stream,  is  admissible  in  evi- 
dence against  the  lessor,  on  the  trial  of  a  complaint  for  flowing 
occasioned  by  raising  the  dam  too  high.^  But,  that  one  threatened 
with  a  suit  for  slander  gave  money  to  another,  to  indemnify  him 
against  loss  by  such  a  suit,  and  took  from  him  a  bond  to  save  him 
harmless,  is  not  competent  as  an  admission  of  guilt.^  So  evidence 
that  the  defendant,  sued  for  instigating  his  slave  to  fire  a  building, 
some  time  pieviously,  when  purchasing  a  negro,  had  said, "  I  like 
these  smart  negroes ;  one  or  two  more  would  steal  me  rich  in  a 
short  time  ;  "  is  inadmissible.*  So  a  letter  addressed  to  a  railroad 
corporation,  claiming  damages  of  them,  and  read  at  the  meeting 
of  their  stockholders,  who  thereupon  vote  to  lay  it  on  the  table,  is 
inadmissible  in  evidence  against  the  corporation.^  So  in  an  action 
against  a  carrier  for  the  loss  of  a  sealed  package,  alleged  to  con- 
tain money  ;  a  receipt,  *'  said  to  contain  "  so  much  money,  is  not 
even  prima  facie  evidence.^ 

§  4  a.  If  a  witness  testifies  to  an  admission,  but  says,''  he  heard 
only  a  part  of  the  conversation  ;  "  the  court  will  not  infer  that 
there  was  a  further  conversation  relating  to  the  subject  of  suit, 
but  will  allow  the  statement  of  the  witness  to  go  to  the  jury.' 

§  4  6.  In  an  action  to  recover  money  stolen  from  the  plaintiff, 
and  claimed  to  have  been  received  by  the  defendant  from  two 
slaves  ;  there  was  evidence,  that  the  defendant  had  been  searched 
in  the  presence  of  A,  one  of  the  slaves,  who  said  that  the  defend- 
ant got  him  to  steal  the  money  ;  that  the  defendant  denied  this  ; 
that  A  also  stated  that  the  defendant  talked  to  him  "  in  the 
field  ;  "  that  the  defendant  denied  this  ;  but,  upon  A's  mentioning 
some  circumstances,  admitted  that  "  he  was  in  the  field,"  but 
denied  that  he  was  talking  about  the  money.  Held,  the  admission 
of  the  defendant  that  "  he  was  in  the  field,"  was  competent  evi- 
dence.^ 

§  4  c.  A  plaintiff  testified,  that  he  had  made  a  demand  of  the 
defendant  for  a  chair  which  belonged  to  him,  and  that  the  defend- 

1  Higgins    I'.   Reed,  8   Clarke   (Iowa),  ^  Robinson  t'.  Fitchburg,  &c.,  7  Gray, 

298.  92. 

'i  Nutting  V.  Page,  4  Gray,  581.  c  Fitzgerald  v.  Adams,  &c.,  24  Ind.  447. 

*  Lucas  V.  Nicliols,  7  Jones,  32.  ^  Williams  ;;.  Keyser,  11  Florida,  234. 

<  Bell  V.  Troy,  35  Ala.  184.  8  Qneener  v.  Morrow,  1  Cold.  123. 


440  EVIDENCE.  [book   IV. 

ant  had  admitted  that  the  chair  was  in  his  possession,  but  refused 
to  deliver  it  up,  claiming  that  he  had  a  lien  upon  it  for  a  demand 
against  the  person  of  wiiom  lie  borrowed  it.  The  defendant  de- 
nied this,  and  the  plaintiff  then  offered  the  testimony  of  A,  his 
attorney,  and  also  a  letter  which  was  received  by  A  in  reply  to 
one  which  he  had  sent  to  the  defendant,  and  bearing  u|)on  the 
alleged  lien.  Held,  the  letter  was  material,  and  the  testimony  of 
A  and  the  letter  must  be  taken  in  connection,  and  treated  as  a 
single  proposition.^ 

§  4  c?.  Where,  in  an  action  against  a  town  for  injuries  occa- 
sioned by  obstructions  in  a  highway,  the  defendant  offered  evi- 
dence that  the  plaintiff  and  his  wife  at  the  time  of  the  accident 
stated  the  circumstances  attending  it,  without  mentioning  the 
obstructions  ;  held,  the  plaintiff  could  not  show  that  at  various 
other  times  he  had  mentioned  the  obstructions. ^ 

§  5.  Admissions  are  held  competent  evidence,  though  relating 
to  facts  which  a])pear  by  a  written  instrument.  Thus,  in  replevin 
of  goods  distrained,  held,  the  plaintiff's  admissions  as  to  the 
terms  upon  which  he  occupied  were  competent  evidence,  though 
he  held  under  a  written  agreement,  which  was  not  produced.^ 

§  5  a.  Previous  legal  proceedings  relating  to  the  same  subject- 
matter  may  be  offered  as  an  admission.  Thus,  in  a  proceeding 
to  assess  damages  for  taking  a  bridge  as  a  public  waj-,  by  a  city, 
an  answer,  signed  by  the  mayor  and  city  solicitor,  to  a  bill  in 
equity  of  the  petitioner  against  the  city.^  So  admissions  in  an 
answer,  though  stricken  out  on  motion  of  the  defendant. ^  So,  in 
a  writ  of  entry  for  flats,  the  record  of  a  previous  action  brought 
by  the  tenant  against  the  demandant,  in  which  tiie  tenant  alleged 
that  he  owned  the  wharves  on  each  side  of  the  premises  demanded, 
and  described  the  intervening  dock  as  not  belonging  to  him,  is 
admissible  against  him,  to  show  that  he  had  not  the  title  in  the 
dock  which  he  claimed.'' 

§  6.  Admissions  are  often  objected  to,  as  made  in  the  course  of 
an  attempt  at  compromise.  It  is  said,  in  a  late  case  :  "  Peace  is 
of  such  worth  that  a  reasonable  man  may  well  be  presumed  to 
seek  after  it  even  at  the  cost  of  his  strict  right,  and  by  an  abate- 
ment from  his  just  claim.     The  offer  which  a  man  makes  to  pur- 

1  Weeks  v.  Barron,  38  Vt.  420.  5  Bloomingdale   v.  Dn   Kell,   1    Idaho 

'■2  Jiidd  V.  Brentwood,  46  N.  H.  4'.0.  Terr.  21. 

3  Howard  v.  Smith,  3  Scott,  N.  574.  «  Boston  v.  Richardson,  13  Allen,  146. 

*  Central    v.   Lowell,    15    Gray,    106. 
See  §  7. 


CH.    III.]  ADMISSIONS    AND    DECLARATIONS.  441 

chase  it  is  to  be  taken,  not  as  his  judgment  of  what  he  sliould 
receive  at  the  end  of  litigation,  but  what  he  is  wilh'ng  to  receive 
and  avoid  it."  ^  But  tlie  distinction  is  well  establislied,  between 
an  offer  of  settlement  itself",  and  an  admission  of  independent  facts, 
made  in  connection  with  such  offer.  Thus  the  selectmen  of  a 
town,  in  the  course  of  conversation  with  a  person  claiming  dam- 
ages for  an  injury  occasioned  by  a  defect  in  a  highway,  with  a 
view  to  compromise,  offered  to  pay  for  his  loss  of  time  and 
actual  expenses,  and  asked  him  what  they  would  amount  to. 
Held,  his  statements  in  repl}',  of  the  amount  of  those  items,  if 
not  made  as  offers  upon  which  he  was  willing  to  settle,  were 
admissible  in  evidence  against  him.  But  not  an  admission  to  a 
third  person  of  the  amount  for  which  he  had  offered  to  compro- 
mise the  action.^  So,  in  an  action  by  a  father  for  the  seduction 
of  his  daughter,  an  agreement  in  writing  between  the  defendant 
and  the  daughter,  in  which  he  admitted  the  seduction,  and  agreed 
to  pay  her  a  sum  of  money,  and  she  released  and  discharged  him 
from  all  actions  of  dan)ages,  and  all  claims,  is  admissible,  not  as 
showing  the  amount  of  damages  or  extent  of  injury,  but  as  an 
admission  of  the  facts  necessary  to  make  out  the  right  of  action.^ 

§  7.  A  party's  admission  of  record  in  a  former  proceeding  is 
evidence  against  him.  Thus  the  plea  of  guilty  in  a  prosecution 
for  the  same  assault."* 

§  8.  It  is  laid  down,  that,  "  where  the  acts  of  the  agent  will  bind 
the  principal,  his  representations,  declarations,  and  admissions, 
respecting  the  subject-matter,  will  also  bind  him,  if  made  at  the 
same  time,  and  constituting  part  of  the  res  gestce.^^ '"  (cC) 

§  9.  The  question  whether   mere  admissions,  independent  of 

1  Per  Thomas,  J.,  4  Gray.  567.  *  Story   on    Airency,  §  134  et   srq. ;  1 

■■'  Harrington  I'.  Lincoln,  ib.  563.  Greenl.   Kv.  191,§llo;  llvnds   v.   Iliiys, 

3  Travis  r.  Barker,  21  liarb.  614.  25   Ind.  31.     See   Fleming   v.   Smith,  44 

*  Bircliard  v.  Bootli,  4  Wis.  67.  See     Barb.  554. 
§6  a. 

(«)  Declarations  f)f  an  agent,  when  not  tion  may  be  properly  submitted  to  the 

engaged   in  the  business  of  liis  agency,  jury,  with  instructions  to  find,  first,  whether 

are  inailniissible  as  against  his  principal;  the  agent  was  acting  witliin  his  authority 

but,  it' all  tliat  is  siiown  by  tliem  is  other-  in   making  the  admission,  and,  if  so,  to 

■wise  proved  by  competent  evidence,  no  weigh  the  admission ;  otherwise,  to  lay  it 

exception  lies  to  their  admission.     Keeler  out  of  the  case.     Wendell  v.  Abbott,  45 

V.    Salisbury,    :53   N.    Y.    648;    Lowry  v.  N.  II.  34'J. 

Harris,  12  Min.  255.  In  an  action  against  the  keeper  of  a 
Where  there  is  evidence  tending  to  hotel  for  the  loss  of  a  shawl ;  after  the 
8how  an  admission  by  an  agent,  and  a  agent  of  the  plaintiff  has  testified,  the  de- 
question  is  raised  as  to  his  authority  to  fendant  may  offer  evidence  of  the  agent's 
make  the  admission,  if  there  is  any  evi-  statements  at  the  time  of  demanding  tlie 
dence  of  such  authority,  the  whole  ques-  shawl,  although  tending  to  impeach  his 


442  EVIDENCE.  [book   IV. 

facts,  are  competent,  sometimes  arises  in  reference  to  corporations. 
In  an  action  against  a  city,  for  partial  destruction  of  a  vessel, 
occasioned  by  the  action  of  health  officers  while  they  were 
officially  in  charge  of  the  vessel;  the  declarations  of  an  alder- 
man, relative  to  the  detention  of  the  vessel  in  quarantine,  are  not 
admissible  in  evidence  against  the  city,  where  the  alderman  was 
not  a  member  of,  and  did  not  represent,  the  board  of  health, 
nor  the  city  government.^  So  the  report  of  a  committee,  that  a 
town  way  is  unsafe,  though  duly  accepted,  is  not  evidence  against 
the  town  in  an  action  for  injuries  arising  from  a  defect  in  the  way.^ 
§  10.  In  an  action  against  a  carrier  for  failing  to  deliver  goods, 
evidence  is  competent,  that  his  servant  requested  the  person  from 
whom  he  received  them  to  make  out  a  bill  of  the  goods  "said  to 
have  been  lost."^  So  the  statements  of  a  general  freight  agent 
of  a  railway,  in  regard  to  goods  delivered  to  him  for  transporta- 
tion, made  when  the  duty  of  the  railroad  to  deliver  the  goods  still 
existed,  although  eight  months  after  the  delivery  of  the  goods 
to  him,  are  admissible  against  the  company.'*  So,  in  an  action 
against  a  carrier,  the  answer  of  his  coachman  or  driver,  to  an 
inquiry  for  the  goods.'^  So,  in  an  action  against  a  railroad  corpo- 
ration by  a  passenger  for  the  loss  of  his  trunk,  the  admissions  of 
the  conductor,  baggage-master,  or  station-master,  as  to  the  manner 
of  the  loss,  made  in  answer  to  inquiries  on  behalf  of  the  passen- 
ger the  next  morning  after  the  loss.  "  It  was  part  of  the  duty  of 
those  agents  to  deliver  the  baggage  of  passengers,  and  to  account 
for  the  same,  if  missing,  provided  inquiries  for  it  were  made  within 
a  reasonable  time."^  So,  for  the  purpose  of  showing  the  negli- 
gence of  a  railroad  in  allowing  a  passenger  platform  to  be  improp- 
erly placed,  in  consequence  of  which  an  accident  took  place  upon 
it;  after  evidence  of  its  situation   and   its  removal,  evidence  is 

1  Mitchell  V.  Rockland,  41  Maine,  363.  *  Burnside  v.  Grand,  47  N.  H.  554. 

2  Wheeler  v.  Framingham,   12  Gush.  5  Mayhew  v.  Nelson,  6  C.  &  P.  58. 
287.     Ace.  Collins  v.  Dorchester,  6  Gush.  ^  Morse  r.   Gonnecticut,  &c.,  6  Gray, 
396.  450  ;  per    Bigelow,  J.,  ib.  451  ;  Gurtis  v. 

8  Ingledew  v.  Northern,  &c.,  7  Gray,  86.     Avon,  49  Barb.  148. 

testimony,  without  a  previous  foundation  charged  are  not  evidence  for  the  plaintiff. 

for   such  impeachment.     Smith   v.   Wal-  Pollard  v.  Louisville,  7  Bush,  5'.)7. 

lace,  25  Wis.  55.  In  a   suit    against   a   railroad   for  an 

One  authorized  to  sell,  but  not  in  act-  injury  causing  death,  prosecuted  by  the 

ual  possession,  being  a  mere  broker;  his  administrator  after  the  death  of  the  orig- 

declarations  are  not  evidence  against  the  inal  plaintiff;  the  admissions  of  her  father 

principal.     Pier  v.  Duff,  03  Penn.  59.  are  not  evidence,  unless   he  is  shown  to 

In  an  action  against  a  surety  for  an  have  some  interest  in  the  result.     Taylor 

agent,   his   admissions  after    being    dis-  v.  Grand,  48  N.  H.  304. 


CH.    III.]  ADMISSIONS    AND    DECLARATIONS.  443 

admissible,  that  the  company's  agent,  immediately  after  the  acci- 
dent, tele^-raphed  to  the  superintendent  the  situation  of  the  plat- 
form, and  that  it  ought  to  be  removed;  and  that  it  was  removed  tlie 
next  day. ^  So  in  an  action  against  a  railway  for  injui-ies  received 
by  the  plaintiff's  wagon  and  horses  from  collision  with  the  cars; 
statements  made  at  the  time  by  the  servant  wdio  was  driving  the 
wagon,  as  to  the  cause  of  the  accident,  are  a  part  of  the  res  gestae, 
and  admissible  against  the  plaintiff.'^  So  A  testified,  without 
objection,  that,  a  few  days  prior  to  the  demand  of  a  chair  by 
the  plaintiff,  he,  at  the  plaintiff's  request,  went  to  the  defend- 
ant's hotel  for  this  chair,  and  while  there,  but  in  the  absence 
of  the  defendant,  he.  A,  asked  the  clerk,  who  had  the  general 
supervision  and  charge,  if  the  chair  was  there,  and  the  clerk 
replied  that  it  was.  Held,  a  declaration  in  respect  to  a  matter 
of  wdiich  the  clerk  had  full  means  of  knowledge,  and  which  tended 
to  show  that  the  chair  was  at  the  hotel  when  A  called  for  it.^ 
So  declarations  by  the  captain  of  a  steamer,  as  to  damage  to 
crops  on  shore  by  fire  from  the  steamer,  made  while  she  was 
running  under  his  command  and  the  fire  was  being  communi- 
cated, are  admissible  against  the  owners.*  (a)  But  the  declaration 
of  an  agent  while  acting  within  the  scope  of  his  authority  is 
admissible  against  his  principal  as  part  of  the  res  gestce ;  not  if 
made  at  any  other  time.  And  this  rule  applies  to  the  officers  of 
a  corporation.^  Thus  in  an  action  against  a  railroad  corporation 
for  damages  sustained  by  the  negligence  of  their  engineer,  his 
statements  as  to  the  accident,  made  a  few  days  afterwards,  are 
inadmissible  against  the  corporation.  So  also  statements  of 
their  president  to  the  plaintiff,  that  he  thought  the  defendants 
Would  give  him  something,  or  pay  him  something.^  So  in  an 
action  against  a  railroad  for  running  over  and  killing  cattle,  where 
carelessness  of  the  engineer  is  alleged,  his  declarations  with 
regard  to  the  accident,  made  long  after,  are  not  evidence  for  the 
plaintiff."     So,  owing  to  the   defective  fastening  of  a  door  in  a 

1  Pennsylvania  t;.  Henderson,  51  Penn.  ^  57  Penn.  339. 

315.  ^  Kobinson  v.  Fitchburg,  &c.,  7  Gray, 

'-'  Toledo  V.  Goddard,  25  Ind.  185.  92. 

3  Weeks  v.  Barron,  38  Vt.  420.  ^  Price  v.  New  Jersey,  2  Vroom,  229. 

*  Gerke  v.  California,  &c.,  9  Cal.  251. 

(a)  Where   suit   is   brought   against  a  vessels  (R.  C.   1845,  p.  180),  depositions 

steamboat,  and  the  master  and  liis  seen-  and   admissions   ol'    tiie   master    will    be 

rities  liave  been  substituted  as  del'endants  treated  in  the  same  way  as  it  the  suit  had 

in  place  of  the  boat,  under  the  9tii  section  been    originally   instituted    against   hiui. 

of  the  Missouri  Act  concerning  boats  and  Withers  v.  Steamboat,  &c.,  24  Mis.  204. 


444  EVIDENCE.  [book    IV. 

stock  car,  part  of  the  stock  jumped  out  and  were  injured.  In  an 
action  for  the  h)ss ;  hehi,  a  letter  from  the  assistant  superintend- 
ent of  the  raih'oad  to  the  station-agent  of  the  place  where  the 
cattle  were  shipped,  dismissing  him  for  allowing  tiie  car  to  start 
so  insecurely  fastened,  was  not  competent  evidence.'  So  in  an 
action  against  a  railroad  for  injuries  received  through  a  collision 
of  its  trains,  statements  by  a  flag-man,  as  to  how  far  he  had  gone 
back  to  flag  the  "  fast-line  "  coming  train,  are  hearsay  and  inad- 
missible.- 

§  10  a.  Declarations,  other  than  admissions  by  a  party  against 
his  own  interest,  are  in  general  incompetent  evidence,  being  mere 
hearsay,  and  wanting  the  sanction  of  an  oath  and  the  test  of  cross- 
examination. 

§  10  b.  The  declaration  of  a  third  person,  made  to,  and  in  the 
presence  of,  parties  engaged  in  a  controversy,  at  the  time  of  the 
doing  of  an  act  by  one  of  them,  which  becomes  the  subject  of  an 
action,  is  admissible  in  evidence  in  such  action  as  a  part  of  the 
res  gestce.^ 

§  10  c.  In  trespass  for  cutting  wood,  evidence,  that  military  offi- 
cers of  high  rank  stated  that  it  was  a  military  necessity  to  cut  the 
wood,  &c.,  is  mere  hearsay.*  So  in  an  action  against  a  railroad,  for 
an  injury  occurring  at  a  station,  witnesses  cannot  testify  what  was 
said  by  bystanders,  immediately  after  the  accident,  about  the  bell 
not  having  been  rung  when  the  train  approached  the  station.^  So, 
in  trover  for  slaves,  their  declarations  were  held  not  admissible,  in 
behalf  of  the  defendant,  unless  shown  to  be  part  of  the  res  gestce 
connected  with  the  conversion.^  So  in  trover  for  a  note  against 
a  sheriff,  who  claims  to  hold  it  as  collateral  security  for  an  execu- 
tion, letters  from  the  attorney  of  the  execution  creditor  to  the 
defendant  after  the  note  came  into  his  hands,  and  his  replies,  re- 
lating to  the  manner  in  which  the  note  should  be  held,  are  inadmis- 
sible for  the  defendant.'^  So,  in  general,  no  one  can  avail  himself 
of  his  own  letters  as  evidence,  unless  called  for  by  the  opposite 
party  to  establish  some  fact  against  him.^  So,  in  an  action  for  mali- 
cious prosecution,  declarations  of  the  defendant,  to  show  that  he 
was  not  actuated  by  malice,  are  inadmissible.'-'     So  evidence  that  a 

1  Betts  V.  Farmers',  21  Wis.  80.  «  Ginion  v.  Baldwin,  88  Ala.  60. 

2  Penn.  v.  Books,  57  Penn.  339.  "i  Fisher  v.  Meek,  38  111.  92. 

3  Gillam  v.  Signian,  29  Cal.  637.  8  iMerritt  v.  Wright,  19  La.  An.  91. 
*  Merritt  v.  Mayor,  5  Cold.  95.  9  Moore  v.  Sanborin,  42  Mis.  490. 

^  Detroit  y. Van  Steinburg,  17. Mich.  99. 


CH.    III.]  ADMISSIONS    AND    DECLARATIONS.  445 

tenant  in  possession,  upon  receiving  a  notice  to  quit,  told  the  person 
who  was  merely  employed  to  hand  the  notice  to  him,  that  he 
claimed  to  own  the  property,  is  inadmissible  in  his  own  iavor.^ 
So,  in  an  action  for  the  sinking  ofafiatboat  while  being  towed  by 
the  defendants'  steamboat,  evidence  of  the  statements  of  one  of  the 
defendants  to  a  stranger  in  regard  to  the  liability  of  the  steamboat 
in  such  cases.^  So,  in  detinue  for  slaves,  the  plaintiff  proved  that 
the  defendant  was  present  when  a  tax  schedule,  including  the 
slaves  as  the  property  of  the  plaintiff,  was  handed  to  the  assessor, 
and  that  the  defendant  made  no  return  of  them.  Held,  the 
defendant  could  not  show  that  afterwards,  on  the  same  day,  he  cor- 
rected his  list  so  as  to  include  them,  althougii  he  remarked  at  the 
time  that  he  had  intended  to  give  in  the  slaves,  but  the  plaintiff 
relieved  him  of  that,  and  he  asked  permission  to  correct  any  mis- 
take, and  spoke  of  getting  advice.^ 

§  10  d.  Dying  declarations,  as  to  the  facts  attending  the  fatal 
injury,  are  held  not  evidence  against  the  defendant  in  a  civil 
suit.'*  But,  in  a  late  case,  such  declarations  of  one  almost  instantly 
killed  by  a  railroad  accident  were  admitted.^  And,  in  ejectment, 
the  declarations  of  deceased  persons,  as  to  the  location  of  a  cor- 
ner or  boundary  line,  made  previously  to  the  commencement  of 
the  litigation,  are  competent  evidence.^  So  under  the  (C(jnn.)  Act 
of  1850,  which  provides,  that,  "  in  suits  by  or  against  the  repre- 
sentatives of  deceased  persons,  the  entries  and  written  memoranda 
of  the  deceased,  relative  to  the  matter  in  issue,  may  be  received 
as  evidence,"  the  letters  of  a  woman,  who  claimed  to  have  been 
defrauded  of  her  property,  stating  the  facts,  are  memoranda, 
and  admissible  in  evidence  in  a  bill  in  equity  brought  by  her 
devisees  to  compel  a  reconveyance.' 

§  10  e.  As  already  suggested,  the  general  rule  of  excluding 
declarations  does  not  apply  to  declarations  accompanying  acts,  or 
making  part  of  tlie  res  gestce.^  These  are  regarded  as  verbal  acts, 
indicating  a  present  purpose  and  intention,  and  are  admissible,  like 
any  other  material  fact,  for  what  they  are  worth. '-^ 

§  11.  Perhaps  the  most  frequent  application  of  the  general  rule 

1  Hogsettr.  Ellis,  17  Mich.  351.  1  Bissell  v.  Beckwith,  32  Conn.  oOQ. 

■-  Is'eal  f.  Scott,  25  Ind,  440.  8  gg^   Woodwell   v.  IJrown,  44  I'enn. 

3  Mcdclieo  V.  iMalioiio,  37  Ala.  258.  121  ;  JNIcLeinore  v.  Tinkston,  31  Ala.  20(3 ; 
*  Daily  r.   New  York,  32  Conn.  356;     Hall   v.  Yonnu',  37  N.  H.  174;   Krlort  v. 

Friedman  r   Hailroad,  7  Phil.  203.  Corsalus,  47  Mis.  208. 

s  Brownell  v.  Pacific,  4i)  Miss.  39.  9  Beckwith  v.  Mollohan,  2  W.  Va.  477. 
6  McCloud  V.  Mynatt,  2  Cold.  163. 


446  EVIDENCE.  [book   IV. 

referred  to  is  found  in  the  case  of  declarations,  by  persons  suffer- 
ing under  bodily  injury  or  disease,  made  either  to  their  physicians 
or  others,  with  reference  to  their  bodily  or  mental  condition,  (a) 
It  is  remarked  in  a  late  case :  "  This  species  of  evidence  was 
undoubtedly  admitted  originally  and  mainly  because  parties  could 
not  testify,  but  it  is  equally  admissible  now,  though  the  necessity 
is  less."  ^  And,  in  another  State,  "  If  made  to  a  physician,  sur- 
geon, or  other  medical  attendant,  they  are  of  greater  weight ; 
but  if  made  to  any  other  person,  they  are  not  on  that  account 
rejected.  They  are  received  as  indications  or  concomitants  of  the 
disease,  malady,  or  injury,  in  some  sort  as  going  to  elucidate  and 
explain  the  condition  of  the  person  making  them,  and  so  part 
of  the  disease,  malady,  or  injury  itself."^  Accordingly,  the 
representations  of  a  sick  or  injured  person,  as  to  the  nature, 
symptoms,  and  effects  of  the  disease  or  injury  under  which  he 
is  suffering  at  the  time,  are  competent  evidence  of  his  condi- 
tion.^ Whenever  the  bodily  or  mental  feelings  of  an  individual, 
at  a  particular  time,  are  material,  the  usual  expressions  of  such 
feelings,  made  at  the  time,  are  admissible  as  evidence  of  such 
feelings.  They  are  classed  with  natural  evidence,  as  distinguished 
from  personal  evidence,  and  whether  they  were  real  or  feigned,  is 
for  the  jury  to  determine.*  Thus  one  who  has  brought  an  action 
for  personal  injuries  may  prove,  as  tending  to  show  their  nature 
and  extent,  his  own  statements  made,  while  suffering  under  such 
injuries,  to  an  examining  physician,  in  regard  to  his  inability  to 
move  certain  portions  of  his  frame,  and  the  pain  produced  by 
other  motions  ;  notwithstanding  such  examination  was  made  after 
commencement  of  suit,  and  with  a  view  to  this  testimony.^     So, 

1  Per  Poland,  J.,  Kent  v.  Lincoln,  32  3  ib.  135. 

Verm.  598.  ^4  phiUips  v.  Kelly,  29  Ala.  628. 

-  Per  Fowler,  J.,  Howe  v.  Plainfield,  ^  Kent  v.  Lincoln,  32  Verm.  591. 
41  N.  H.  136. 

(a)  In  questions  of  insanity,  it  is  held  admissible  to  show  the  effects  of  a  blow 

that  the  acts  and  f/ec/ara//o/is  of  the  party,  upon    his   head,    though    in   general  he 

the  condition  of  whose  mind  is  the  subject  would  not  be  a  competent  witness  against 

of  investigation,  may  be  given  in  evidence,  a  white  man.     Biles  t-.  Holmes,  11  Ired. 

A  case  of  tiiis  nature  is  somewhat  remark-  16. 

able  for  the  disagreementof  eminent  judges  In  an  action  against  a  carrier  for  in- 

in  seven  successive  hearings.     Wright  v.  juries    to    cattle,    remonstrances    to    his 

Tatiiam,   5  Clark   &  Fin.  670;  7  Ad.  &  employe's,    because    the  cattle    were  im- 

EU.  313.  properly  stowed,  are  admissible,  to  show 

A  striking  application  of  the  general  that  the  attention  of  those  in  charge  was 

rule  is  found  in  a  case,  where,  from  neces-  called  to  the  difficulty.     Black  v.  Cam- 

sity,  the  declarations  of  a  slave  were  held  den,  45  Barb.  40. 


CH.    III.]  ADMISSIONS    AND    DECLARATIONS.  447 

in  an  action  for  assault  and  battery,  tlie  plaintiff  may  prove  that, 
about  two  years  after  the  assault,  in  which  he  was  wounded  in 
the  breast,  side,  head,  and  neck,  he  lay  down  and  complained 
that  his  head,  neck,  and  back  hurt  him.^  So  in  an  action  against 
a  town,  by  husband  and  wife,  for  damages  sustained  by  the  wife 
in  consequence  of  a  defect  in  the  highway  ;  her  representations  as 
to  the  nature,  symptoms,  and  effects  of  the  injury,  made  to  her 
physician,  are  admissible  and  competent  evidence  tending  to  show 
her  actual  condition.^  So,  in  an  action  for  personal  injuries,  a 
physician  may  testify  to  the  statements  of  the  ])laintifT,  made  to 
him  for  the  purpose  of  advice,  as  to  the  character  and  seat  of  her 
injuries  and  sensations,  though  after  the  cominencemcnt  of  the 
action,  they  being  a  part  of  the  facts,  on  which  his  opinion  as  an 
expert  in  regard  to  her  condition  is  founded.^ 

§  12.  As  already  suggested,  declarations  of  a  sick  person  are 
corapetent,  though  not  made  to  a  physician.*  Thus  the  declara- 
tion of  a  slave,  made  while  laboring  under  a  disease,  to  his  master, 
that  he  ^'  was  sick,  and  had  a  pain  in  his  chest,"  was  held  admis- 
sible in  a  suit  by  the  master  against  the  vendor  of  the  slave  for 
a  false  warranty  of  soundness.^  (a) 

§  13.  The  declarations  of  a  physician,  on  leaving  home  and 
taking  medicines  with  him,  as  to  the  person  whom  he  is  going  to 
visit,  are  admissible  as  part  of  the  res  gestce.^ 

§  14.  But  declarations  of  this  nature  are  confined  to  somewhat 
narrow  limits.  They  are  sometimes  excluded  upon  the  ground 
that "  they  tended  to  qualify  no  act  done." "         It  is  said  to  be  well 

1  29  Ala.  G28.  <  Wilkinson  v.  Moselev,  30  Ala.  562. 

'i  Howe  V.  Plainfiekl,   41   N.   H.  135;  5  Fondren  ?;.  Durfee,  8'J  Miss.  Sl'l. 

Matteson  v.  New  York,  35  N.  Y.  487  ;  42         ^  Autaujra,  &c.  r.  Davis,  32  Ala.  703. 
111.  438.  ■?  Per  Shaw,  C.  J.,  5  Gray,  459.     See 

3  Barber  v.    Merriam,    11  Allen,  322.  Ford  v.  Haskell,  32  Conn.  489. 
See  42  111.  438  ;  2u  Iowa,  279. 

(a)  Testimony,  as  to  the  manner  of  the  Exclamations  of  pain  uttered   by  the 

pauper's  showing  iiis  distress  and  need  o  patient  are  original  evidence  of  suflering, 

relief,  and  as  to  Ins  physical  condition,  is  and  are  admissible  to  show  a  physician's 

admissible  in  an  action  by  one  town  against  malpractice;    but   not    for    the    purjjose 

another  for  supplies  furnished.    New  Port-  of  aggravating    the  damages.     Hyatt  v. 

land  V.  Kingfield,  55  Maine,  172.  Adams,  16  Mich.  180. 

In   a   late   case,   the  limitation  of  the  In    an    action    by   a  husband   for  fatal 

general  rule  is  staled,  that  tlic  c.x()ort  may  injuries  received  by  the  wife,  her  declara- 

state  wliat  his  patient  said  in  describing  tions,  while  sutiijring  from  the  injuries,  as 

his  bodily  condition,  if  said  under  circum-  to  the  nature  ami  character  of  lier  sufier- 

stances  which  free  it  from  all  suspicion  of  ings  and   sickness,  are  admissible.     But 

being  spoken  witli  reference  to  future  liti-  not  her  declarations  as  to  the  cause  other 

gation,  and    give  it  the  character  of  res  sutfering,   not  sliown  to  have  been  made 

gestie ;  otherwise  as  to  the  patient's  state-  at  a  time  which  woulil  entitle   them  to 

ments    upon    tlie    specific    cause   of  his  be  regarded  as  part  of  the  )vs  (/es^cE.    Gray 

malady.     Illinois  v.  Sutton,  42  111.  438.  v.  McLaughlin,  26  Iowa,  279. 


448  EVIDENCE.  [book   IV. 

settled,  tliat  the  declarations  of  a  person,  injured  when  no  one 
else  who  can  be  a  witness  is  present,  are  not  evidence  to  show  the 
manner  in  which  the  injury  occurred,  however  nearly  contempo- 
raneous they  may  be  with  the  injury  itself.^  Although  a  party's 
declarations  as  to  his  health  are  admissible  evidence  to  some  pur- 
poses in  his  own  behalf,  they  must  be  restricted  to  his  health  at 
the  time  of  speaking,  and  cannot  be  taken  with  relation  to  past 
matters.'-^  Thus  representations  of  a  slave,  made  to  a  physician 
or  other  person,  were  confined  to  the  malady  under  which  she 
was  laboring.  A  representation,  without  any  question,  that  she 
had  become  diseased  after  the  plaintiff  purchased  her,  and  in 
consequence  of  ill-treatment,  was  not  admissible.^  So  in  an  action 
by  an  administrator,  to  recover  property  on  the  ground  that  a 
transfer  made  by  A,  the  deceased,  in  his  last  sickness,  was  fraudu- 
lent, and  that  he  was  insane  when  he  executed  it ;  the  plaintiff 
cannot  give  in  evidence  the  declarations  of  A's  wife,  made  to  a 
creditor  who  called  to  see  him  in  his  last  sickness,  that  his  mind 
was  affected  by  his  disease.*  Nor,  where  insanity  is  relied  upon  to 
avoid  a  sale,  can  a  physician,  who  a  short  time  before  the  sale 
had  visited  the  party  in  consultation  with  his  attending  physician, 
testify  to  the  declarations  made  to  him  at  that  time  by  either  the 
wife,  physician,  or  other  attendant,  as  to  previous  symptoms  or 
condition.^  In  the  same  case,  with  reference  to  the  offer  of  the 
physician's  opinion  in  evidence,  founded  upon  the  excluded 
declarations,  Mr.  Justice  Kice  remarks  as  follows:  "While  it 
excludes  declarations  ...  it  receives  ...  an  opinion,  based  upon 
that  incompetent  testimony  ;  thus  attempting  to  elevate  the  stream 
above  the  fountain,  to  make  a  corrupt  tree  bring  forth  good  fruit. 
The  declarations  of  the  nurse  and  wife  may  have  been  only 
mere  inferences  on  their  part,  and  on  those  inferences  the  doctor 
is  desired  to  draw  an  inference;  and  this  last  inference,  being 
called  the  opinion  of  an  expert,  is  made  to  assume  the  char- 
acter of  competent  and  substantial  evidence.  .  .  .  The  opinion  of 
medical  men  is  evidence  as  to  the  state  of  a  patient  whom  they 
have  seen.  ...  So  where  .  .  .  they  have  heard  the  symptoms 
and  particulars  of  his  condition  detailed  by  other  witnesses.  .  .  . 
"We   permit   experts   to  testify  as   to   the   genuineness   of  hand- 

1  Per  Redfield,  C.  J.,  State  v.  David-         3  Nored  v.  Adams,  2  Head,  449. 
son,  30  Verm.  377.  *  Kimball  v.  Currier,  5  Gray,  458. 

^  Hunt  V.  People,  3  Parker,  569.  «  Heald  v.  Thing,  45  Maine,  392. 


CH.    III.]  ADMISSIONS    AND    DECLARATIONS.  449 

writing  by  comparison,  but  ...  it  must  be  admitted  or  proved 
that  the  specimen  with  which  the  comparison  is  made  is  gen- 
uine."^ 

§   15.  Declarations  are   often   introduced,  as   part  of  the  res 
gestce,  upon  questions  of  title  to  land.     Tlius  they  are  held  ad- 
missible upon  a  question  of  boundary.^     So  the  declaration  of 
a  public  surveyor,  when  running  a  line,  that  he  was   running 
a  division  line.^     Or,  upon  the  question  of  title,  the  declarations 
of  the  purchaser  at  the  time  of  purchase.*     But  evidence  that 
the  owner  of  a  dam,  when  rebuilding  it,  gave  instructions  to 
mark  the  height  of  the  old  dam,  and  make  the  new  one  of  the 
same  height,  is  not  admissible  in  his  favor  to  show  that  it  was 
so  built.     Such  instructions  had  no  tendency  to  explain  the  act 
done,  which  was  a  fact  susceptible  of  direct  proof.     Moreover, 
the  acts  were  disconnected  from  the  instructions,  and  in  point  of 
time  subsequent.^     So  declarations  of  the  owner  of  land,  since 
deceased,  while  standing  on  his  land,  are  not  competent  evidence, 
in  favor  of  a  person  claiming  under  him,  to  prove  a  right  of  way 
over  adjoining  land.'^     Mr.  Justice  Thomas  thus  enumerates  the 
supposable  cases  in  which  such  evidence  might  be  competent; 
at  the  same  time  questioning  the  broad  proposition  on  the  subject 
laid  down  in  1  Greenl.  on  Evidence,  §  109 :  "  It  is  not  evidence 
of  the  party  under  whom  the  defendant  claims,  tending  to  show 
an  admission  of  the  right  of  way  in  disparagement  of  his  own 
title.     It  is  not  evidence  of  the  plaintiff's  grantor  in  disparage- 
ment of  his  title.     It  is  not  the  declaration  of  one  in  possession 
of  land  or  in  the  use  of  an  easement,  qualifying  that  possession 
or  use.     It  is  not  the  declaration  of  a  party  against  his  interest. 
It  is  not  a  declaration  made  by  an  owner  of  land  now  deceased, 
while  on  the  land,  and  pointing  to  its  boundaries,  in  relation  to 
such  boundaries.     The  declaration  was  accompanied  by  no  act, 
which  it  qualified  and  gave  character  to  ;  it  was  not  of  the  res 
gestce.     It  is  not  evidence  of  reputation.     It  is,  on  the  other  hand, 
but  the  naked  declaration  of  the  owner  of  land,  standing  on  his 
own  land,  and  in  favor  of  himself  and  his  estate,  claiming  an  ease- 
ment over  land  in  the  possession  of  another."  ^ 

1  HeaUl  V.  Thing,  45  Maine,  392.  s  Nutting  v.  Page,  4  Gray,  581. 

'■2  George  v.  Thomas,  16  Tex.  74.  •>  Ware  v.  Brooiihouse,  7  Gray,  454. 

3  lb.  ^  lb.  455. 

*  Brush  V.  Blanchard,  19  111.  31. 

29 


450  EVIDENCE.  [book   IV. 

§  16.  The  rule  of  res  gestce  is  not  unfrequently  applied  in  con- 
nection with  the  execution  of  legal  process.  Thus  an  admission 
by  a  husband,  while  holding  a  slave,  that  it  was  a  loan  to  the  wife 
from  her  father,  was  held  evidence  against  a  purchaser  at  an  execu- 
tion sale,  under  a  judgment  subsequently  rendered  against  the  hus- 
band.i  So  in  an  action  by  A  against  B,  for  taking  his  property  in 
satisfaction  of  an  execution  against  C,  evidence  of  declarations  of 
C,  while  acquiring  the  property  as  the  agent  of  A,  that  he  was 
purchasing  it  for  himself,  is  admissible.^  So  what  was  said  by  a 
constable  at  the  time  of  a  levy,  as  to  the  fact  of  the  levy,  as 
corroborative  of  his  return,^  So,  in  an  action  against  a  constable, 
for  selling  hogs  of  the  plaintiff,  as  the  property  of  A,  the  person 
in  possession,  the  declaration  of  A,  that  the  hogs  belonged  to 
the  plaintiff,  made  before  the  levy;  —  as  showing  the  charac- 
ter of  the  possession,  and  as  against  the  defendant  claiming 
under  A.^ 

§  17.  As  miscellaneous  examples  of  the  rule  in  question,  it  was 
held  that  the  plaintiff,  for  the  purpose  of  showing  that  the  offen- 
sive smells  from  a  privy  and  pig-sty  were  an  annoyance  to  his 
family,  might  introduce  evidence  of  complaints  made  by  his  wife, 
since  dead,  while  suffering  (^upon  •which  word,  as  used  technically, 
particular  stress  was  laid)  from  the  offensive  smells,  and  at  a  time 
when  the  smells  were  perceived  by  others.^  So,  in  an  action 
against  a  sheriff  for  the  escape  of  one  J.  Gr.  W.,  it  was  proved 
that  J.  G.  W.  was  captain  of  the  ship  H.,  which  was  towed  out 
to  sea  on  a  certain  day;  and  that  a  person  on  board,  who  was 
addressed  as  "  Captain  W.,"  replied  thereto  and  acted  as  captain. 
This  was  held  to  be  primd  facie  evidence  that  W.  left  the  country 
as  captain  of  the  H.,  upon  which  the  case  should  have  been  left 
to  the  jury.^  So,  in  an  action  against  an  insurance  company  for 
the  loss  of  a  ship,  burned  by  the  orders  of  military  authorities ; 
proof  of  what  the  persons  who  destroyed  the  vessel  said,  at  the 
time,  relative  to  their  orders,  is  admissible  as  part  of  the  res  gestce  J 
So,  that  a  carrier  by  water,  whose  boat  had  stranded,  telegraphed 
up  the  river  to  ascertain  the  stage  of  the  water,  may  be  proper 
evidence  of  diligence,  and  therefore  its  admission  is  not  necessa- 


1  Cole  V.  Varner,  31  Ala.  244.  5  Kearney  v.  Farrell,  28  Conn.  317. 

2  McNeely  v.  Hunton,  24  Mis.  281.  6  Jackson  v.  Orser,  2  Hilt.  99. 

3  Grandy  v.  McPherson,  7  Jones,  347.  7  Marcy  i;.  Merchants',  19  La.  An.  388. 
♦  Sharp  V.  Miller,  3  Sneed,  42. 


CH.    III.]  ADMISSIONS    AND    DECLARATIONS.  451 

rily  error. 1  So  in  an  action  by  bailor  against  bailee  for  loss  by 
negligence,  the  declarations  of  the  latter,  contemjioraneous  with 
the  loss,  are  admissible  in  his  favor,  to  show  the  nature  of  the 
loss.2  So,  in  an  action  for  enticing  away  a  servant,  his  declara- 
tions made  at  the  time  of  leaving  the  master  are  admissible,  as 
part  of  the  res  gestce,  to  show  the  motive  of  his  departure.-^  So, 
upon  the  question  of  A's  solvency  at  a  given  time,  evidence  of 
what  was  said  by  the  parties,  at  the  time  of  a  settlement  of  ac- 
counts between  A  and  B,  in  regard  to  the  amount  due,  is  admis- 
sible, to  show  how  much  was  received  on  such  settlement  by  A, 
and  in  what  way."*  So,  in  trover  for  slaves,  the  plaintiff  claimed 
under  a  deed  of  gift,  and  the  defendant  under  a  subsequent  sale 
on  an  execution  against  the  donor.  Held,  that  evidence  was 
admissible,  on  the  question  of  the  purchaser's  notice  of  the  gift, 
of  a  conversation  between  the  purchaser,  the  donor,  and  the 
father,  the  natural  guardian  of  the  donees,  who  were  minors, 
which  occurred  when  the  former  went  to  seek  information  imme- 
diately befoie  the  sale,  he  having  heard  that  there  was  an  out- 
standing title  to  the  slaves.'^  So  declarations  of  the  defendant  in 
an  action  on  an  attachment  bond,  made  to  his  attorney  at  the  time 
of  suing  out  process,  are  admissible  in  evidence  as  part  of  the 
res  gestce.^  So  the  admissions  of  a  defaulting  teller  to  the  presi- 
dent of  the  bank,  upon  discovery  of  the  default,  in  an  action 
against  him  and  his  sureties." 

§  18.  The  admission  or  rejection  of  such  evidence  is  not,  how- 
ever, discretionary  in  the  particular  case,  but  is  governed  by  fixed 
principles  of  law.^  The  declarations  of  a  third  person,  explanatory 
of  contemporaneous  acts,  are  not  admissible,  unless  the  acts  are 
themselves  relevant  and  material,^  independently  of  what  was 
said  ;  nor  unless  the  declaration  relates  to  those  acts,  and  is 
explanatory  of  them.^°  And  an  offer  of  evidence  of  what  was  said 
by  a  party,  accompanying  his  act,  must  be  limited  to  what  was 
said  relative  to  or  connected  with  the  act,  or  it  may  be  pi'operly 
rejected. 1^ 

§  19.  In  a  late  case  it  is  remarked :  "  Two  things  must  concur. 

1  Jolinson  V.  Ligbtsey,  34  Ala.  169.  ^  Union  v.  Edwards,  47  Mis.  445. 

2  1  Greenl.  Ev.  185,  n.  ;  Story,  Biiilm.  s  pgr  Fletclier,  J.,  Lund  v.  Tyngs- 
§  339.  boroimh,  9  Cusli.  00. 

3  Hadley  v.  Carter,  8  N.  H.  40.  9  Fail  v.  MeArtliur,  31  Ala.  2f.. 

4  Buttram  v.  Jack.<;ori.  32  Ga.  409.  •"  Morrill  i-.  Foster,  32  X.  H.  358  ;  S.  C. 
6  Black  I'.  Tliornton,  31  Ga.  641.               33  ib.  379. 

6  Wood  V.  Barker,  37  Ala.  00.  n  Wiggin  v.  Blumer,  11  Fost.  251. 


452  EVIDENCE,  [book   IV. 

1.  The  facts  themselves  must  be  relevant  and  material,  independ- 
ently of  what  was  said ;  and,  2.  The  declaration  must  relate  to 
those  facts,  and  must  be  explanatory  of  them.  So  that  if  the  dec- 
laration is  material,  but  the  act  is  important  only  as  it  furnished 
the  occasion  for  making  the  statement;  or  if  the  act  is  not 
material  without  the  declaration,  and  the  only  connection  of  the 
act  with  the  case  grows  out  of  the  declaration  ;  or  if  the  statement 
relates  to  a  matter  in  no  way  connected  with  the  act,  except  that  it 
occurred  at  the  same  time,  the  evidence  is  not  admissible."^  And 
these  rules  were  applied  to  the  somewhat  peculiar  facts  of  the  case. 
In  order  to  show  that  A  and  B,  two  of  the  heirs  of  C,  a  former 
owner  of  the  land  in  question,  under  whom  all  parties  claimed, 
conveyed  their  interest  in  the  estate  of  their  father  to  D,  under 
whom  the  defendant  claimed ;  the  defendant  offered  the  following 
evidence.  A  witness,  sixty-three  years  old,  testified,  that  about 
the  year  1804  or  1805  E,  who  married  B,  came  to  the  house  of  F, 
where  the  witness  lived,  in  the  winter,  with  a  lumber-box  and  two 
horses,  and  also  went  to  the  house  of  D,  from  which  place  he 
returned  with  his  lumber-box  filled  with  sugar,  tea,  and  other 
necessaries  for  a  family.  In  the  evening  he  said  to  F,  that  he 
had  been  to  all  the  heirs,  and  they  had  signed  an  acquittance  of 
the  land,  desiring  it  might  be  sold,  and  the  price  applied  to  the 
support  of  their  mother,  and  that  he  had  got  all  his  pay,  a  part 
in  the  articles,  and  the  rest  in  money.  In  commenting  upon  this 
somewhat  remarkable  attempt  to  apply  the  doctrine  of  res  gestce, 
Mr.  Justice  Bell  remarks :  "  Taking  the  whole  statement  of  the 
witness,  exclusive  of  the  story  told  by  Kimball,  there  is  no  act  of 
any  person,  no  fact  of  any  kind,  in  the  slightest  degree  material 
in  the  case.  It  was  absolutely  immaterial  and  irrelevant,  that 
Moses  Kimball  came  to  Thompson's  with  a  sleigh  and  horses,  and 
went  to  Wheeler's,  and  came  back  with  his  sleigh  filled  with 
sugar,  tea,  and  other  necessaries  for  a  family.  However  explan- 
atory of  those  facts,  and  whatever  elucidation  or  character  might 
be  given  to  them  by  the  statements  made  by  Kimball,  those  facts 
were  inadmissible,  because  they  had  of  themselves  no  bearing  on 
the  case."  2 

§  20.  And  in  a  late  case  such  declaration  is  held  competent, 
"  only  when  the  thing  done  is  equivocal,  and  it  is  necessary  to 

1  Per  Bell,  J.,  Morrill  v.  Foster,  32  N.  H.  360. 

2  lb. 


CH.    III.]  ADMISSIONS   AND    DECLARATIONS.  453 

render  its  meaning  clear,  and  expressive  of  a  motive  or  object."  ^ 
And  the  general  rule  was  held  not  to  render  admissible  the  rea- 
son given  by  a  pauper  for  not  paying  a  tax.^  So  in  a  suit  brought 
by  A  against  the  administrators  of  B,  in  which  the  question  in 
issue  is,  whetlier  B  held  possession  of  personal  property  as  the 
bailee  or  as  the  vendee  of  A  ;  tiie  declaration  of  B  that  he  was 
the  owner  is  not  admissible  infavor  of  the  administrator,  although 
made  while  B  was  in  possession,  and  accompanied  by  an  offer  to 
sell.^  So  several  joint  defendants,  in  an  action  for  a  riotous  as- 
sault, cannot  introduce  evidence  of  the  declarations  of  some  of 
them  in  the  crowd  while  proceeding  to  the  plaintiff's  house,  where 
the  assault  was  committed,  indicating  a  peaceable  intent ;  or  of  a 
conversation  had  by  one  of  them  with  the  plaintiff  two  hours 
before  the  assault,  and  reported  to  the  crowd  before  they  pro- 
ceeded to  the  house.*  So  reasons  given  by  guests  of  an  inn  for 
leaving  it  are  incompetent  evidence  to  show  an  injury  done  to  the 
inn  by  an  alleged  nuisance.^ 

§  21.  As  may  be  inferred  from  what  has  already  been  said, 
declarations,  to  be  admissible  as  explanatory  of  acts  or  transac- 
tions, must  generally  be  made  at  or  about  the  same  time  at  which 
the  acts  were  done  or  the  transactions  occurred.  They  must 
accompany  an  act,  or  be  so  nearly  connected  therewith  in  time  as 
to  be  free  from  all  suspicion  of  device  or  afterthought.*^  They 
are  not  required  to  be  precisely  concurrent  in  time  with  the  prin- 
cipal transaction ;  if  they  spring  from  it,  tend  to  explain  it,  are 
voluntary  and  spontaneous,  and  made  at  a  time  so  near  it  as  to 
preclude  the  idea  of  deliberate  design.'^  They  are  not  competent 
if  merely  narrative,  as  in  the  familiar  case,  referred  to  by  Mr. 
Justice  Fletcher  (in  Lund  v.  Tyngsboroiigh,  9  Cush.  36),  where 
the  holder  of  a  check  went  into  a  bank,  and  when  he  came  out 
said  he  had  demanded  payment.  So  declarations  of  a  defendant 
in  execution,  while  in  possession  of  the  chattels  in  controversy, 
and  explanatory  of  this  possession,  are  admissible  evidence  against 
the  claimant;  but  not  his  declarations  respecting  the  source  of 
his  title,  as  that  he  claimed  them  as  a  distributee  of  his  fatlier's 

1  Per  Bipolow,  J.,  Nutting  v.  Page,  4         3  Cheeseman  v.  Kyle,  15  Ohio  St.  15. 
Gray,  584;  Worden  v.  Powers,  37  Verm.  •*  Stone  v.  Segur,  11  Alien,  5(38. 

619.     See  Jacobs  v.  Whitcomb,  10  Cash.  ^  Wesson  v.   Washburn  Iron   Co.,  13 

255.  Allen,  95. 

'i  North,  &c.  V.   Stonington,  31   Conn.  «  Kutland  v.  Ilathom.  30  Ga.  380. 

412.  '  People  i-.  Vernon,  35  Cal.  49. 


454  EVIDENCE.  [book   IV. 

estate.^  So  in  trover  by  A  for  a  negro,  carried  by  his  wife  to 
his  son-in-law  B's  liouse,  her  declarations,  while  carrying,  were 
inadmissible  to  rebut  the  presumption  of  a  gift  from  three  years' 
subsequent  possession  by  B.  So  her  declarations  made  several 
months  after  his  possession  commenced.^  So  where  the  question 
is  the  good  faith  of  the  sale  of  goods,  whatever  is  said  in  the  prog- 
ress of  the  negotiations,  and  contemporaneous  with  the  sale,  and 
having  a  tendency  to  give  a  character  to  it,  and  which  derives 
credit  from  it,  is  admissible.  But  not  a  recital  of  past  transac- 
tions ;  as  where  the  sale  had  been  completed,  and  one  of  the  par- 
ties, during  the  afternoon  of  the  day  of  the  sale,  at  another  place, 
stated  what  had  been  done.^  So,  in  a  suit  in  which  the  validity  of 
a  sale  is  in  issue,  declarations  of  the  plaintiff  made  a  few  days  after 
the  sale,  are  not  admissible.^  Nor  the  statement  of  a  claimant, 
while  engaged  in  renting  a  store-room,  that  he  had  bought  some 
goods  of  the  defendant.^  Nor  a  card,  signed  by  passengers  the 
day  after  a  railroad  accident,  exonerating  the  oflScers  of  the  train 
from  all  blame,  in  a  suit  against  the  corporation  by  the  widow 
of  a  person  killed.^  So,  in  trespass  for  wounding  the  plaintiff's 
intestate  and  driving  him  from  home,  and  thereby  causing  his 
death  ;  his  declarations  made  at  the  time  of  the  injury  are  compe- 
tent evidence,  but  not  those  made  during  his  compulsory  absence 
from  home.'^  So  an  agreement  cannot  be  proved  by  declarations 
accompanying  an  act,  although  they  may  be  competent  as  to  the 
subject  or  result  of  the  agreement.  Thus  declarations  of  a  wife, 
contemporaneous  with  the  delivery  of  money  to  another  person, 
that  it  was  her  separate  property,  are  admissible  evidence  as  a 
part  of  i\\Q  res  gestce ;  but  not  her  declarations  that  the  money 
was  the  proceeds  of  her  own  labor,  under  an  agreement  with  her 
husband  that  she  might  retain  it.^  So  the  declarations  of  a  ticket- 
agent,  made  after  the  transaction  of  selling  the  ticket  was  closed, 
are  not  admissible.'^  Nor  statements  of  a  conductor,  made  after 
the  malfeasance  of  the  railroad  complained  of,  and  unauthorized 
by  his  principal.!*'     So  the  declaration  of  a  third  person,  not  made 

1  Brice  v.  Lyde,  30  Ala.  647.  8  Raisler  v.    Springer,  38    Ala.    703  ; 

2  Raitbrd  v.  French,  11  Rich.  367.  McLemore  v.  Pinkston,  31  Ala.  266. 

3  Banfield  v.  Parker,  36  N.  H.  353.  9  Milwaukee,  &c.  v.  Finney,  10  Wis. 
*  Webb  V.  Kelly,  37  Ala.  333.  388. 

6  Devries  v.  Phillips,  63  N.  C.  207.  ^0  Griffin  v.  Montgomery,  &c.,  26  Geo. 

6  Macon  v.  Jolinson,  38  Ga.  409.  111. 

■?  Parkey  v.  Yeary,  1  Ileisk.  157. 


CH.    III.] 


ADMISSIONS   AND    DECLARATIONS. 


455 


at  the  time,  is  not  admissible  evidence  of  the  motive  for  an 
act.i 

§  22.  One  party,  in  order  to  rebut  the  effect  of  his  declarations 
and  admissions,  cannot  show  contrary  declarations  made  at  a  dif- 
ferent time,  and  in  the  absence  of  the  other ;  although  connected 
with  certain  acts  and  circumstances,  which,  of  themselves,  would 
not  tend  to  prove  the  issue.  Thus  where  it  is  sought  to  charge 
the  defendant  as  a  partner:  after  evidence  of  his  admissions,  it  is 
not  competent  for  him  to  prove  by  the  same  witness,  that  at 
another  time  he  denied  the  partnership,  though  in  connection 
with  the  act  of  refusing  to  execute  a  lease  of  the  store;  nor  a 
conversation  concerning  the  parties  to  a  writ  made  in  the  name 
of  the  firm,  or  the  insolvency  of  the  firm.- 

§  23.  Declarations  of  a  plaintiff  in  an  action  for  an  assault  and 
battery,  made  at  a  distance  of  two  or  three  hundred  yards  from 
the  place  of  the  assault,  the  interval  of  time  not  being  fixed,  are 
not  admissible.^ 

§  24.  Questions  often  arise,  as  to  the  competency  and  effect  of 
admissions  or  declarations  made  by  one  of  several  parties  who  are 
jointly  interested  in  the  subject-matter  of  suit,  (a)  Upon  this 
point  it  is  the  general  rule,  that,  where  several  persons  are  proved 
to  have  combined  together  for  the  same  illegal  and  fraudulent  pur- 


412. 


1  North,  &c.  V.  Stonington,  31  Conn. 


2  Hunt  V.  Rovlance,  11  Cush.  117. 

3  Clierry  v.  McCall,  23  Geo.  193. 


(a)  See  Moriarty  v.  London,  5  Law 
Rep.  (Eng.)  Q.  B.  1870,  p.  314.  In 
trover  by  a  wife,  where  the  defend- 
ant sets  up  that  the  ])roperty  heh)nfied 
to  another;  declarations  of  the  liusband 
in  relation  to  the  ownership  are  inadmis- 
sible.    Hanson  o.  Millet,  55  Maine,  184. 

In  an  action  by  a  husband  for  injury 
to  his  wife  by  negligence,  her  declaration, 
made  at  the  time  of  the  accident,  that  the 
conductor  was  not  negligent,  will  not  be 
received  as  an  admission  by  the  husband  ; 
but,  if  other  witnesses  have  tostitieil  that 
no  such  declaration  was  made  by  her,  it 
is  admissible  as  affecting  their  credibility. 
Stillwell  V.  New  York,  34  N.  Y.  29.  See 
32  N.  Y.  597. 

Declarations  of  the  husband,  tending 
to  disclaim  ownersliip  of  furniture  in  the 
house  occupied  by  him,  arc  admissible  to 
estai)lish  ownershij)  in  the  wife  as  against 
his  creditors,  after  liis  death.  Caswell  v. 
Hill,  47  N.  II.  407. 


In  an  action  for  injury  to  a  wife,  from 
the  upsetting  of  a  wagon,  by  reason  of  an 
alleged  defect  of  the  town  highway,  the 
admission  of  the  husband  that,  "if  she 
had  not  struck  the  oW  horse  and  made 
him  jump  against  the  near  one  and  jiusli 
him  oti',  the  accident  would  not  have 
occurred,"  is  comjietent  evidence,  being 
stated  as  a  fact  and  not  as  hearsay.  But 
not  an  admission  by  him  that  he  knew, 
before  the  accident,  that  the  road  was  not 
safe,  there  being  no  evidence  that  he  sent 
or  knew  the  team  was  going  on  that  road. 
Shaddock  v.  Clifton,  22  Wis.  114. 

Where  tliere  is  a  combination  or  con- 
spiracy between  the  jilaintitls  and  A  to 
prosecute  the  suit  for  the  benefit  of  A,  a 
defendant  does  not  entitle  himself  to  the 
use  of  secondary  evidence,  nu'reiy  by  the 
charge  of  such  combination,  A  having,  as 
alleged,  control  of  the  priniary  evidence 
U])on  which  he  rests  his  defence.  Baily 
V.  Tranmiell,  27  Tex.  317. 


456  EVIDENCE.  [book   IV, 

pose,  any  act,  done  by  one,  in  pursuance  of  the  original  concerted 
plan,  and  with  reference  to  the  common  object,  is  in  contemplation 
of  law  the  act  of  all ;  and  any  writings  or  verbal  expressions,  being 
acts  in  themselves,  or  accompanying  and  explaining  other  acts,  in 
furtherance  of  the  common  design,  and  sopartof  the  res^este,  which 
are  brought  home  to  one,  are  evidence  against  the  others,  if  made 
and  used  in  furtherance  of  the  common  purposes ;  ^  more  espec- 
ially if  made  at  the  time  of  doing  the  act.  But  the  joint  con- 
spiracy and  common  design  must  be  proved.^  So,  in  an  action  for 
conspiracy,  proof  of  a  division  of  the  profits  is  sufficient  evidence  of 
combination,  in  the  first  instance,  to  render  admissible  the  decla- 
rations of  one  conspirator  against  the  rest.^  So,  in  case  of  fraud, 
to  render  such  declarations  admissible,  it  is  not  necessary  that 
the  person  making  them  should  have  been  a  party  at  the  original 
concoction  of  the  fraud,  if  he  attempt  subsequently  to  reap  the 
benefit  of  it.*  So,  after  proof  of  collusion  between  a  debtor  and 
one  to  whom  he  has  conveyed  property,  conversations  of  the 
grantee  with  a  third  party,  in  the  presence  of  the  debtor,  are 
admissible  against  the  debtor  to  show  fraudulent  intent  in  the 
conveyance.^  So,  where  a  vendor  remains  in  possession,  this  is 
evidence  of  a  conspiracy  as  to  creditors,  and  the  court  will  admit 
the  vendor's  declarations  as  co-conspirator.^  So  where  a  sheriff, 
at  a  sale  on  execution,  acts  under  the  direction  of  two  creditors, 
holding  different  executions,  the  instructions  given  to  him  by 
either,  in  presence  of  the  other,  are  properly  received  in  evidence, 
in  a  suit  between  them  growing  out  of  the  sale.^ 

§  25.  But  a  fraudulent  combination  or  conspiracy  must  be 
established,  before  the  declarations  of  one  conspirator  can  be 
given  in  evidence  against  another  for  any  purpose.^  Where 
no  common  object  or  motive  is  imputed,  as  in  actions  for  negli- 
gence, the  declaration  or  admission  of  one  joint  defendant  is  not 
evidence  against  the  others.^  "  It  is  only  acts  and  declarations 
of  a  conspirator  in  furtherance  of  the  common  design,  or  during 
the  prosecution  of  it,  that  can  affect  his   confederates."  i'^     Nor 

1  Page  V.  Parker,  40  N.  H.  47 ;  Lee  v.  6  Blake  v.  Graves,  18  Iowa,  312. 

Lamprey,  43  ib.  13  ;  37  Penn.  330.  7  Smith  v.  Hill,  22  Barb.  656. 

-  Ellis  V.  Dempsey,  4  W.  Va.  126.  »  47  Barb.  131. 

3  Kimmell  v.  Geeting,  2  Grant,  125.  9  Daniels  v.  Potter,  1  M.  &  M.  501. 

4  Peterson  v.  Speer,  29  Penn.  479.  10  Per  Strong,  J.,  Thomas  v.  Maddan, 

5  O'Neil  V.  Glover,  5  Gray,  144;   Lin-  50  Penn.  265. 
coin  V.  Clatiin,  7  Wall.  132 ;  Jeune  v.  Jos- 

lyn,  41  Verm.  478. 


CH.    III.]  ADMISSIONS   AND   DECLARATIONS.  457 

are  the  declarations  admissible,  of  one  against  others  not  present, 
made  after  the  offence  was  committed,  and  merely  a  narration 
of  a  past  transaction,  and  not  made  to  further  the  illegal  or 
criminal  design.^  So  where  two  are  sued,  the  admissions  of  one 
are  evidence  against  himself;  but,  unless  like  admissions  by  the 
other  can  be  proved,  they  must  be  withdrawn  from  the  jury.^  So 
declarations  of  defendants,  who  did  not  answer,  and  were  not 
served  with  a  summons,  made  when  the  one  who  defends  was  not 
present,  are  not  admissible  against  him,  when  such  declarations 
tend  to  establish  the  allegations  in  the  complaint.^  So  in  an  action 
of  trespass  against  a  sheriff  for  selling  the  property  of  A,  a  non- 
resident, under  an  execution  against  B  (which  property  was 
found  in  the  possession  of  B,  who  claimed  to  hold  it  as  the  agent 
of  A),  the  declarations  of  B  are  not  admissible  as  evidence  of 
fraud  and  collusion  between  him  and  A,  without  some  evidence  of 
a  common  purpose  or  design  between  them.^  So  the  admissions  of 
one  defendant,  as  to  his  own  illegal  and  improper  conduct,  should 
not  be  received  in  evidence,  after  his  death,  in  an  action  for  con- 
spiracy, which  is  tried  against  his  surviving  co-defendants  only.^ 
And  admissions  of  one  tort-feasor  are  evidence  against  himself, 
but  not  against  others  joined  in  the  same  action,  where  the  cause 
of  action  is  the  negligence  of  only  one  of  the  parties.^  So  the 
admissions  of  one  of  several  cestuis  que  trust  of  real  estate  are 
inadmissible  to  defeat  the  title  of  their  trustee.'^  So  declarations  of 
one  of  two  defendants  in  an  action  of  trover,  made  while  in  pos- 
session of  the  property,  that  the  plaintiff  formerly  owned  it, 
though  admissible  against  himself,  are  not  admissible  against  the 
other,  to  prove  title  in  the  plaintiff.^ 

§  25  a.  In  an  action  by  a  passenger  against  a  steamboat  com- 
pany for  injury  from  the  discharge  of  a  gun  by  a  soldier  in  the 
boat,  a  conversation,  just  previous  to  the  discharge,  between  offi- 
cers of  the  insubordinate  detachment  to  which  the  soldier  belonged, 
is  competent  evidence.^  Otherwise,  in  a  suit  against  members  of  a 
military  organization  for  depredations  during  the  war,  with  a  con- 
versation between  other  persons  engaged  in  enlisting  men  for  the 

1  30  Verm.  100.  6  De    Benedetti  v.  Mauchin,   1   Hilt. 

2  Thompson  v.  Richards,  14  Mich.  172.  213. 

3  Peck  V.  Yorks,  47  Barb.  131.  ■?  Pope  v.  Devereux,  5  Gray,  409. 
*  McDowell  r.  Bis.-^eli,  37_Penn.  164.  »  Edjrerton  i-.  Wolf,  0  Gray,  453. 
5  Gaunce  c.  Backhouse,  3/   Peun.  350;          ^  Flint  v.  Norwich,  7  Blatch.  536. 

Jacobs  V.  Shorey,  48  N.  II.  100. 


458  EVIDENCE.  [book   IV. 

organization,  as  to  its  purposes  and  designs,  and  declarations  as  to 
the  alleged  acts.i 

§  26.  A  party's  own  acts,  declarations,  or  omissions,  are  not  in 
general  admissible  in  his  favor.  Thus  a  party  sued  for  an  alleged 
loan  cannot  show  that  he  made  no  entry  in  his  books  of  the 
receipt  of  the  money  ;  or  his  own  declai'ations,  about  the  time  of 
the  alleged  loan,  as  to  the  condition  of  his  pecuniary  obligations.^ 
But  the  effect  of  an  implied  admission  by  acts  may  be  qualified 
by  accompanying  declarations.  Thus,  where  a  steamer  ran  into 
a  flat-boat,  sunk  it,  picked  up  and  carried  forward  a  portion  of 
the  cargo,  claimed  salvage,  and  received  a  large  sum  of  money ; 
in  an  action  against  the  steamer  for  the  collision,  the  shipper  may 
show  that  he  paid  the  money,  protesting  that  no  salvage  was  due, 
and  in  order  to  get  possession  of  the  goods,  and  under  a  special 
agreement  that  the  claim  for  salvage,  damages,  &c.,  was  to  be  left 
to  legal  decision.^ 

§  27.  The  declarations  of  parties  are  sometimes  received  in  their 
own  favor,  when  they  accompany  acts,  or  make  part  of  the  res 
gestoi.^  Thus,  where  two  drovers,  A  and  B,  came  to  an  inn 
together,  and  A  told  the  hostler  not  to  tie  the  horses,  but  he 
did  tie  them,  and  B's  horse  was  strangled  ;  held,  in  an  action 
against  the  innkeeper,  such  direction  was  admissible  in  evidence.^ 
So  in  an  action  by  a  town  against  the  owners  of  a  dam,  alleged 
to  have  broken  away  from  insufficiency,  the  declarations  of  the 
defendants,  when  leaving  home  in  a  direction  towards  the  dam, 
that  they  were  going  to  the  dam  to  take  care  of  it,  are  competent 
as  part  of  the  res  gestce.^ 

§  27  a.  Upon  this  point  the  following  distinctions  are  made  : 
"  The  declarations  of  a  party,  giving  character  to  and  qualifying 
his  acts,  and  deriving  a  credit  from  them,  are  admissible  in  favor 
of  the  party  making  them,  as  part  of  the  res  gestcc,  when  the  acts 
themselves  are  material  to  the  issue.  .  .  .  The  fact  was  mate- 
rial, as  being  the  foundation  of  the  plaintiff's  claim,  constituting 
the  service  for  which  he  seeks  to  recover  compensation.  .  .  .  But 
it  is  not  material  in  the  sense  that  as  evidence  it  would  tend  to 
establish  the  point  in  controversy  in  favor  of  one  party  or  the 

1  Lyons  v.  Wattenberger,  1  Heisk,  193.     Cal.  219  ;    Wadsworth    v.  Harrison,    14 

2  Douglass  V.  Mitchell,  35  Penn.  440.       Iowa,  272. 

3  Weaver  v.  Alabama,  &c.,  35  Ala.  176.  &  Jones  v.  Hill,  26  Geo.  194. 

*  See  Antoine,  &c.  v.  Eidge,  &c.,  23         ^  Shrewsbury  v.  Smith,  12  Gush.  177. 


CH.    III.]  ADMISSIONS   AND    DECLARATIONS.  459 

other.  The  question  at  issue  was,  whether  there  had  been  a 
change  in  the  location  of  the  line  of  the  road.  The  act  of  the 
plaintiff,  in  doing  the  work  at  the  sand-hill,  was  equally  consistent 
with  the  conflicting  positions  taken  by  the  parties  .  .  .  whether  in 
doing  that  work  he  was  grading  the  original  line  or  a  new 
one."  1 

§  28.  Admissions  sometimes  operate  by  way  of  estoppel,  rather 
precluding  the  party  from  setting  up  facts  in  his  own  favor,  than 
constituting  evidence  of  facts  against  him.  Thus,  where  one 
assumes  to  act  in  an  official  character,  this  is  an  admission  of  his 
appointment  or  title  to  the  office,  so  far  as  to  render  him  liable  for 
official  misconduct  or  neglect.^  So  in  an  action  for  charging  an 
attorney  with  swindling,  and  threatening  to  have  him  struck  off 
the  roll  of  attorneys  ;  held,  the  threat  imported  an  admission  that 
he  was  an  attorney.^  So  one,  who  has  officiously  meddled  with 
the  goods  of  a  person  recently  deceased,  is  estopped  to  deny  his 
own  executorship,  as  against  creditors.^  So  where  the  proprietors 
of  a  coach  took  up  more  passengers  than  were  allowed  by  statute  ; 
in  an  action  for  an  injury  alleged  to  be  thereby  caused,  held,  this 
excess  was  conclusive  proof  of  such  allegation.^  So  where  the 
plaintiff  signed  a  railroad  receipt  for  the  carriage  of  goods  con- 
taining certain  provisions,  under  the  head  of  "  conditions,"  which 
he  did  not  read,  nor  know  their  terms ;  he  was  presumed  to  have 
known  the  effect  of  the  paper,  and  was  held  bound  by  its  con- 
ditions.^ So  where  goods  in  possession  of  a  debtor  were  attached 
as  his  property,  though  belonging  to  one  who  received  them  from 
the  sheriff  for  safe-keeping  as  the  debtor's  property,  without  notice 
of  his  own  title,  the  debtor  having  at  the  time  other  attachable 
goods;  held,  in  an  action  by  the  sheriff,  the  bailee  was  estopped 
to  claim  the  goods  as  his  own."  So  the  defendants,  brokers, 
instructed  to  effect  insurance,  falsely  wrote  in  reply,  that  they 
had  effected  two  policies.  In  trover  against  them  for  the  poli- 
cies, held,  they  were  estopped  to  deny  their  own  statement,  and 
should  be  treated  as  themselves  insurers.^     So  it  is  held  that  a 

1  Per  Sawyer,  J.,  34  N.  H.  505.  *  Israel  v.  Clark,  4  Esp.  259. 

2  1  Greenl.  Ev.  2<.)8,  299.  «  Lewis  v.  Great,  &c.,  5  Hurl.   &  Nor. 

3  Cummin   v.    Smith,   2  S.  &  R.   440.     867. 

But  see   Smith  v.    Taylor,  1  N.  R.   196.  1  Davey  t'.  Field,  4  Met.  881. 

See  also  Wilsou  v.  Carnegie,  1  Ad.  &  Ell.  ^  Harding  v.  Carter,  1  Greenl.  Ev.  316 ; 

695.  Park  on  Ins.  4. 
*  Reade's  case,  6  Co.  33. 


460  EVIDENCE.  [book   IV. 

sheriflFis  estopped  from  denying  his  own  return  that  he  had  taken 
bail.i 

§  29.  But,  in  general,  there  can  be  no  admission  by  way  of 
estoppel,  unless  other  parties  have  acted  upon  the  strength  of 
such  admission.  Thus,  in  an  action  by  a  tenant  for  selling  grain 
in  the  ground  upon  executions  against  the  landlord ;  the  defend- 
ant cannot  rely,  as  an  estoppel,  upon  declarations  of  the  plaintiff 
as  to  the  tenancy,  made  to  third  persons,  there  being  no  proof 
that  the  defendant  acted  upon,  or  was  misled  by,  such  declara- 
tions.2  In  the  action  of  crim.  con.,  an  admission  by  the  defend- 
ant that  the  woman  was  the  wife  of  the  plaintiff  is  not  conclusive 
against  him.^ 

§  30.  The  acts  and  declarations  of  third  persons,  not  in  the 
party's  presence,  are  not  admissible  against  him.^  Thus,  the  dec- 
larations of  a  physician  with  respect  to  the  health  of  a  slave.^ 
So  (in  Iowa),  in  an  action  of  trespass  for  killing  a  bull,  it  appeared 
that  the  defendant  committed  the  act.  The  defendant  then  offered 
to  prove,  that  A  and  B  had  told  the  witness,  that  the  defendant 
had  nothing  to  do  with  killing  the  bull ;  that  they  themselves  had 
done  the  act ;  that  A  and  B,  at  the  time  of  the  conversation,  were 
leaving  the  State,  in  consequence  thereof;  that  this  conversation 
took  place  about  the  time  the  bull  was  killed  ;  that  B  left  the 
State  previously  to  the  trial  before  the  justice,  and  A  some  two 
months  after  the  trial ;  that  B  was  then  dead,  and  A  resided  in  the 
State  of  Illinois.  Held,  the  evidence  was  incompetent.^  But,  if 
the  law  prescribes  a  penalty  for  the  failure  of  a  certain  class  of 
persons  to  perform  a  duty ;  the  fact  of  its  omission  by  an  indi- 
vidual, and  that  it  was  not  complained  of  by  the  community  where 
he  resided,  is  admissible  on  the  question  whether  he  belonged  to 
that  class  or  not." 

§  31.  The  declarations  of  third  persons  as  to  possession  are 
often  offered  in  evidence. 

§  32.  The  declaration  of  a  person,  while  in  possession  of  a 
slave,  to  the  effect  that  her  father  gave  it  to  her,  was  held  not 
explanatory  of  possession,  but  to  relate  to  title.^ 

1  Simmons  v.  Bradford,  15  Mass.  82;  5  Blackman  v.  Johnson,  35  Ala.  2-52. 

Eaton  V.  Ogier,  2  Greenl.  46.  6  Ibbitson  v.  BroMu,  5  Clarke  (Iowa), 

-'  Keam  v.  Harnish,  45  Penn.  376.  532. 

3  Morris  v.  Miller,  4  Burr.  2057.  7  Bryan  v.  "Walton,  20  Geo.  480. 

*  Barker  v.  Coleman,  35  Ala.  221.  8  AUen  v.  Prater,  30  Ala.  458. 


CH.    III.]  ADMISSIONS   AND    DECLARATIONS.  461 

§  33.  The  statements  of  one  in  possession  of  land  are  admis- 
sible evidence  of  the  manner  of  possession.^ 

§  34.  In  trover  against  the  bailee  of  a  sheriff,  the  declarations 
of  his  bailor,  tending  to  show  a  conversion  made  after  suit 
brought,  are  not  admissible  evidence  against  him.^ 

§  35.  Questions  often  arise,  as  to  the  declarations  of  persons 
in  some  way  connected  with  a  party,  in  reference  to  the  subject- 
matter  of  the  suit,  (a) 

§  36.  In  an  action  by  a  minor,  througli  his  father  as  next 
friend,  the  father's  declarations  were  excluded.^ 

§  37.  The  declarations  and  admissions  of  a  slave,  made  at  the 
time  of  his  arrest  as  a  runaway,  were  not  competent  evidence  for 
the  party  making  the  arrest,  in  an  action  against  the  owner  to 
recover  the  statutory  penalty;''  nor  could  confessions  of  a  slave, 
that  he  had  committed  wrongful  acts,  be  heard  as  evidence  against 
the  master."  But  declarations  of  a  mother  and  guardian,  as  to  the 
right  to  certain  property  claimed  by  her  minor  children,  made 
when  she  was  a  feme  sole,  are  competent  evidence  against  her  hus- 
band after  her  death.*^"  So  the  declarations  of  an  intestate,  that 
certain  slaves  were  held  by  him  as  trustee  for  his  wife,  and  not  as 
her  husband,  were  admissible  in  evidence  against  his  administra- 
tor, in  a  suit  brought  by  him  against  the  wife  for  the  slaves.'' 

§  38.  Where  the  defendant,  in  an  action  of  trover,  relies  on 
paramount  title  outstanding  in  A,  the  admissions  and  declarations 
of  A,  disclaiming  title,  are  admissible  in  behalf  of  the  plaintiff.^ 

§  38  a.  Acts  and  declarations  contemporaneous  with  an  alleged 
gift  are  admissible  as  part  of  the  resgestce  to  prove  delivery.  Also, 
the  subsequent  acts  of  the  donor  and  donee,  showing  the  claim 
of  title  of  the  latter,  and  a  recognition  of  such  title  by  the  former.^ 
So  the  declaration  of  a  vendor  before  the  sale,  and  while  in  pos- 
session of  the  property. ^"^  But  not  statements  made  after  the  sale 
by  a  vendor  in  possession,  in  pursuance  of  the  contract ;  as  against 

1  Young  V.  Adams,  14  B.  Mon.  127.  «  Brush  v.  Blancbard,  19  III.  31. 

^  Spencer  v.  Godwin,  80  Ala.  355.  "  Liile  v.  Lide,  '•^^l  Ala.  44',). 

»  Hammer  v.  Pierce,  5  Harring.  304.  «  White  r.  Dinkins,  11)  Geo.  285. 

^  Tiiorpe  V.  Burroughs,  31  Ala.  15'J.  »  Bragg  v.  JMassie's  Adm'r,  38  Ala.  89. 

5  Doty  V.  Moore,  16  Tex.  591.  lo  Veunum  v.  Thompson,  38  111.  143. 

{n)  Tlie  declarations  of  a  defendant  in  of  his  title,  u-hen   he.   is   a   comprtrnt   wit- 

attaclimont    are    not   admissible   against  ness.      Langsdorf  ;•.  Field,  3G  Mis.  440; 

claimants  of  the  property  ;  or,  in  general,  Howell  v.  Howell,  37  Mis.  124. 
declarations  of  a  person  in  disparagement 


462  EVIDENCE.  [book   IV. 

a  bond  fide  purchaser^when  they  were  not  made  in  bis  presence. ^ 
Nor  the  declarations  or  acts  of"  a  vendor  of  property,  which  he  has 
previously  sold  and  delivered.^  Thus  evidence  of  acts  or  declara- 
tions of  A,  a  vendor  of  goods,  after  he  has  parted  with  his  property, 
is  not  admissible  against  the  vendee,  in  an  action  against  him  by 
B,  the  original  owner  of  the  goods,  who  claims  that  the  purchase 
from  B  by  A  was  fraudulent.^ 

§  38  Z>.  A  sheriff,  who  was  also  an  executor,  deposited  money 
in  a  bank,  noting  on  the  bank-book  that  the  sum  belonged  to  the 
estate  of  his  testator.  In  an  action  by  an  administrator  de  bonis 
non  against  the  bank  to  recover  the  deposit ;  held,  evidence  that 
the  sheriff  (since  deceased)  pointed  to  the  entry  in  the  book,  and 
said  it  was  the  estate's  money,  was  admissible,  not  to  charge 
the  bank  with  a  trust,  but  to  prove  the  true  ownership  of  the 
fund.4 

§  38  c.  In  trover,  where  the  plaintiff  claims  under  a  deed  of 
gift,  and  the  defendant  under  a  subsequent  sale  by  the  donor  to 
the  defendant's  father ;  evidence  of  what  was  said  and  done  at  the 
sale  is  competent,  upon  the  question  whether  the  father  had  notice 
of  the  prior  gift.^ 

§  38  d.  Declarations  of  a  party  in  possession  of  slaves,  explana- 
tory of  such  possession  and  in  disparagement  of  title,  were  held 
admissible  in  evidence,  although  he  claimed  to  hold  them  under 
a  will  which  was  not  produced.*^ 

§  38  e.  In  a  suit  for  slaves,  evidence  Avas  held  admissible  of 
the  declarations  of  a  person  under  whom  the  defendant  held, 
that  the  slaves  were  loaned  to  him  by  A,  under  whom  the  plain- 
tiff claimed,  and  were  to  be  returned,  and  that  there  was  a  dispute 
about  the  title,  and  that  he  would  only  sell  such  a  title  as  he  got 
from  the  sheriff,  as  he  was  informed  that  the  heirs  of  A  would 
claim  them.''' 

§  38  /.  In  trover,  by  the  mortgagee  of  a  chattel,  against  one 
claiming  under  the  mortgagor,  conversations  or  acts  of  the  mort- 
gagor, treating  the  mortgage  as  subsisting,  are  not  admissible  in 
evidence  against  the  defendant,  unless  brought  home  to  him,  even 
if  he  has  not  pleaded  title  in  himself.^ 

1  McClellan  v.  Cornwell,  2  Cold.  298.  *  Stair  v.  York,  55  Penn.  364. 

2  Hessing    v.  McCloskey,  37  111.  341;         5  Black  v.  Thornton,  30  Ga.  361. 
Webb  V.  Kelly,  37  Ala.  833.  «  Patterson  v.  Flanagan,  37  Ala.  513. 

3  Hall  r.  Hinks,  21  Md.  406 ;  Holmark         ^  Jemison  v.  Smith,  37  Ala.  185. 
V.  Molin,  5  Cold.  482.  8  ciark  v.  Houghton,  12  Gray,  38. 


CH.    III.]  ADMISSIONS   AND   DECLARATIONS.  468 

§  38  g.  In  replevin  for  a  colt,  brought  by  an  executor,  the  plain- 
tiff cannot  prove  the  declarations  of  his  testator,  made  while  the 
colt  remained  on  his  premises,  with  his  other  stock,  ten'ding  to 
show  that  he  claimed  to  own  the  colt,  to  rebut  testimony  offered 
by  the  defendant,  tending  to  show  a  previous  gift  by  the  testator 
to  his  son,  who  lived  with  him,  and  of  whom  the  defendant  had 
purchased  the  colt.^ 

§  38  h.  Declarations  of  a  husband,  that  he  sold  a  note  belonging 
to  the  separate  estate  of  his  wife,  are  not  admissible  in  evidence, 
after  his  death,  against  the  wife,  in  an  action  brought  by  her 
against  the  holder  of  the  note  for  its  conversion.^ 

§  38  i.  In  replevin,  to  warrant  the  admission  of  the  declara- 
tions of  the  vendor  under  whom  the  plaintiff  claims,  it  should  be 
clearly  shown  that  he  was  in  possession  when  the  declaration  was 
made ;  except  on  cross-examination,  to  contradict  his  testimony 
on  direct  examination.^ 

§  39.  Declarations  are  often  offered  in  evidence  to  prove  or  dis- 
prove alleged  fraud. 

§  40.  Statements  by  a  vendor,  made  after  a  sale  and  conveyance 
to  a  creditor,  concerning  his  indebtedness  to  the  vendee  before  the 
sale,  and  in  the  absence  of  the  vendee,  are  not  competent,  in  a  suit 
by  other  creditors,  to  prove  the  conveyance  fraudulent.^  (a)  A 
grantee  is  not  to  be  bound,  as  to  the  fraudulent  nature  of  the 
transaction,  by  the  declarations  of  the  grantor,  until  shown  aliunde 
to  be  cognizant  of,  or  implicated  in,  the  fraud.^  But  to  prove 
an  assignment  for  the  benefit  of  creditors  fraudulent,  it  is  com- 
petent to  show  the  declarations  of  the  assignor,  made  after  the 
assignment  was  delivered,  but  before  the  schedules  were  made  out 
and  attached,  and  while  the  assignor  was  engaged  in  preparing 
them.^ 

§  41.  To  show  that  the  sale  of  a  stock  was  made  in  the  regular 
course  of  legitimate  business,  bond  fide,  and  not  in  fraud  of  credi- 

1  Holmes  v.  Sawtelle,  53  Maine,  179.  Pliillips,  42  111.  423  ;   Gill  v.  Strozier,  32 

2  Miirphrce  v.  Singleton,  37  Ala.  412.  Geo.  688;  Cooke  v.   Cooke,  21)  Md.  538; 

3  Sel.<liy  V.  Kcdlon,  19  Wis.  17.  Short  v.  Tinslev,  1  Met.  (Ky.)  397. 

4  Robinson  v.  Piteer,  3  W.  Va.  335;         ^  Ewing  v.  Grav,  12  Iiid.  04. 
Jones  V.  Morse,  36  Cal.  205 ;    Miner  v.         «  Wyckoff  v.  Carr,  8  JMich.  44. 

(a)    In    late  cases   the   distinction   is  completion  of  the  sale,  or  if  the  vendee 

made,  that,  in  favor  of  an  execution  credi-  ha<l    notice   of  the   fraiidident   intention, 

tor,  the  declarations  of  a  vendor  are  com-  Gallagher   v.    Williamson,    23    Cal.    331; 

petent  to  prove  fraud  against  himself,  and  Gregory  v.  Frothinghani,  1  IS'eva.  253. 
also  against  the   vendee,  if  made  before 


464  EVIDENCE.  [book   IV. 

tors,  it  is  competent  to  prove  previous  declarations  of  the  seller 
to  the  witness  of  his  desire  to  sell  out.^ 

§  42.  An  insolvent  debtor's  statement  of  the  terms  of  a  previous 
agreement,  under  which  certain  machinery  was  put  into  the  build- 
ing of  another,  are  inadmissible  to  sliow  that  a  subsequent  sale 
of  the  machinery  to  the  owner  of  the  building  was  made  in  good 
faith.2  So  the  statements  of  an  insolvent  debtor,  whether  made 
before  or  after  a  sale  alleged  to  be  fraudulent,  as  to  the  value  of 
the  property,  and  of  his  other  property,  are  inadmissible  against 
his  assignee  in  insolvency,  to  show  that  the  sale  was  in  good 
faith.3 

§  43.  Where  it  is  stipulated,  in  a  deed  of  trust,  that  the  grantor 
may  remain  in  possession  until  the  debt  secured  shall  become 
due,  when,  if  not  paid,  the  trustees  shall  have  the  right  to  take 
possession  and  sell ;  and  the  grantor  continues  in  possession,  and 
sells  the  goods  conveyed  in  the  usual  course  of  business :  in  a 
suit  by  attachment  against  the  grantor  by  a  creditor,  on  the 
ground  of  a  fraudulent  conveyance,  the  declaration  of  the  cestui 
que  trust,  he  not  being  a  party  to  the  suit,  and  a  competent  wit- 
ness for  either  of  the  parties,  made  in  the  absence  of  the  grantor, 
that  the  grantor  had  a  right  to  sell  the  goods  conveyed  in  the 
deed  in  the  ordinary  course  of  business,  is  inadmissible.'^ 

§  44.  In  an  action  brought  by  a  purchaser  of  chattels  against 
the  sheriff,  for  seizing  them  under  an  execution  in  favor  of  a  cred- 
itor of  the  vendor,  upon  the  ground  that  the  sale  was  merely  col- 
orable ;  to  prove  the  good  faith  of  the  sale,  the  wife  of  the  vendor 
cannot  be  asked,  among  other  questions,  "  Did  you  hear  any  thing 
said  before  you  heard  the  sale  talked  of?"  ^ 

§  44  a.  In  trespass  against  a  sheriff  and  judgment  creditors,  for 
taking,  on  execution  against  A,  a  piano  which  the  plaintiff  claimed 
that  he  had  previously  purchased  of  A,  evidence  is  admissible  of 
declarations  of  A,  made  before  the  levy,  that  he  had  sold  it  for  a 
valuable  consideration  to  the  plaintiff.^ 

§  44  b.  So,  in  an  action  to  recover  the  value  of  ahorse  taken  by 
the  defendants  under  an  attachment  as  the  property  of  the  plain- 
tiff's son,  evidence  is  admissible  of  the  declarations  of  the  son, 
while  he  was  in  possession  of  the  horse,   as  to  the  ownership.'^ 

1  Heywood  v.  Reed,  4  Gray,  574.  ^  Salmon  v.  Orser,  5  Duer,  511. 

2  lb.  6  Mulholland  v.  Ellitson,  1  Cold.  307. 

3  lb.  ^  Blake  v.  Graves,  18  Iowa,  312. 

4  Eeed  v.  Pelletier,  28  Mis.  173. 


CH.    III.]  ADMISSIONS   AND   DECLARATIONS.  465 

In  an  action  by  a  corporation,  to  recover  for  the  conversion  of 
property  conveyed  to  it  by  A  and  B,  its  officers  and  principal 
stockliolders,  and  taken  by  the  defendant  on  execution  against 
A  and  B  ;  upon  an  issue  as  to  the  good  faith  of  the  transfer, 
evidence  is  admissible  as  to  the  acts  and  declarations  of  A  and  B, 
tending  to  show  that  they  were  using  tlie  property  after  the 
transfer  as  if  it  were  their  own.  And  this  notwithstanding  the 
provision  of  2  (N.  Y.)  R.  S.  407,  §§  80,  99,  that,  in  suits  by  or 
against  a  corporation,  the  admission  of  any  member  tliereof,  not 
named  on  the  record  as  a  party,  shall  not  be  received  as  evidence 
against  the  corporation,  unless  concerning  some  transaction  in 
which  he  was  their  authorized  agent.  But  declarations  by  A  and 
B,  that  notes  had  been  issued  by  them  to  be  discounted  at  usurious 
rates,  made  subsequently  to  the  transfer,  and  not  in  relation  to 
the  property,  are  not  admissible.^ 

§  44  c.  Declarations  of  assignors  for  the  benefit  of  creditors, 
made  subsequently  to  the  assignment  and  delivery  of  the  property, 
are  not  evidence  for  the  parties  sued  by  the  assignees  for  taking 
and  selling  the  goods  under  an  execution  against  the  assignors  ; 
and  this  although  one  of  the  assignees  was  present,  and  may 
have  heard  the  declarations.'^ 

§  44  d.  Declarations  of  a  party  do  not  bind  those  claiming 
under  him  by  a  right  arising  prior  to  the  declarations,  and  are 
not  evidence  against  those  so  claiming.^  And  it  is  held  in  late 
cases,  that  such  declarations  are  inadmissible,  when  prior  to  the 
assignment,'*  when  subsequent  to  the  assignment,^  or  when  made 
at  the  time  of  assignment.^ 

§  44  e.  Another  subject,  concerning  which  declarations  are  fre- 
quently offered,  is  that  of  title  to  real  property. 

§  45.  In  an  action  by  A,  as  owner,  for  overflowing  lands  at  the 
time  and  for  many  years  in  the  possession  of  B  ;  the  declarations 
of  B,  while  in  possession,  are  inadmissible  for  A,  to  prove  that  B 
was  a  tenant  for  life  in  riglit  of  his  wife,  and  A  the  remainder-man." 
So  the  declarations  of  a  person  deceased,  made  while  living  on 
land,  that  he  had  an  estate  in  fee  therein,  are  not  admissible  evi- 
dence for  one  claiming  under  him.^     So,  in  ejectment,  tiie  admis- 

1  Persse   v.   Willett,   1    Kob.    (N.   Y.)  ^  Weinrich  v.  Porter,  47  Mis.  2'.)3. 

131.  6  Vance  v.  Smith,  2  Ileisk.  848. 

^  Peck  V.  Croiise,  46  Barb.  151.  "^  Wardlaw  v.  llammoml,  'J  liicli.  454. 

3  Howard  v.  Snelling,  32  Ga.  195.  »  Watson  v.  Bissell,  27  .Mis.  220. 

■*  Bullis     V.     Montgomery,    3     Lans. 
65. 

80 


4G6  EVIDENCE.  [book    IV. 

sions  of  an  occupant  are  incompetent,  unless  there  be  some  privity 
between  him  and  the  defendant ;  and  even  then,  if  he  can  be 
called  as  a  witness.^  So,  in  an  action  for  trespass  on  land,  the 
declarations  of  a  person,  who  formerly  occupied  it  under  a  bond 
for  a  deed  from  the  defendant,  that  he  did  not  own  the  land,  are 
inadmissible,  if  he  has  not  been  called  as  a  witness,  and  no  evi- 
dence introduced  that  he  ever  did  own  the  land."-^  So  it  is  incom- 
petent for  a  defendant  in  ejectment  to  show  by  the  declarations 
of  his  ancestor  the  circumstances  of  his  previous  possession; 
though  he  may  thus  show  how  and  what  he  claimed  at  the  time  of 
his  speaking.^ 

§  45  a.  The  declarations  of  a  vendor,  made  three  months  before 
the  sale,  and  in  the  absence  of  the  vendee,  not  explanatory  of 
his  possession  or  title,  are  not  competent  evidence  against  the 
vendee.'*  Nor  the  declarations  of  a  grantor  in  a  deed  of  gift, 
made  several  years  after  its  execution,  when  he  had  no  interest 
in  the  subject-matter  of  the  gift.^  Nor  a  letter,  written  by  an 
assignor  for  the  benefit  of  creditors  to  one  of  them,  long  after  the 
assignment,  and  after  he  had  parted  with  the  possession  and  con- 
trol of  the  property.''' 

§  45  h.  Although  the  acts  and  declarations  of  a  person  taking 
possession  of  land  are  admissible  to  show  the  intent  and  character 
of  his  possession ;  the  court  is  not  bound  to  admit  them,  unless 
upon  offers  to  prove  specific  facts,  which  transpired  at  such  times 
that  they  could  only  be  declaratory  of  his  present  and  past  pos- 
session, without  regard  to  its  conflict  with  any  future  or  probable 
claim.'' 

§  45  c.  The  declarations  of  a  grantor  in  a  deed  of  warranty  are 
inadmissible  to  sustain  the  title  of  the  grantee,  if  tending  to 
release  him  from  liability  on  his  warranty.'^ 

§  45  d.  The  admissions  of  an  insolvent  debtor,  after  the  sale 
of  his  property  by  the  trustee  or  mortgagee,  are  inadmissible  to 
impeach  the  title  of  the  purchaser,  unless  assented  to  by  him,  or 
made  in  his  presence,  without  objection  on  his  part.^ 

§  45  e.  In   an   action   involving   the  validity  of  a  levy  upon 

1  Hanley  v.  Erskine,  I'J  III.  265;  36  Thompson  v.  Herring.'^  27  Tex.  282; 
Mis.  440.  Burroughs  v.  Jenkins,  Pliili.  (N.  C.)  Equ. 

2  Niles  V.  Patch,  13  Gray,  254.  33. 

3  Hood  V.  Hood,  2  Grant,  229.  6  Carleton  v.  Baldwin,  27  Tex.  572. 
*  Garner  v.  Bridges,  38  Ala.  276.     See  "^  Sharp  v.  Johnson,  22  Ark.  70. 

Robinson  v.  Pitzer,  3  W.  Va.  335.  8  Leach  v.  Fowler's,  22  Ark.  143. 

5  Grooms    v.     Rust,    27     Tex.     231 ;         9  Sutter  v.  Lackmann,  39  Mis.  91. 


en.    III.]  ADMISSIONS    AND    DECLARATIONS.  4G7 

real  estate,  the  declarations  of  a  person  not  a  party  to  the  suit, 
as  to  the  ownership  of  tlie  execution,  not  made  in  presence  of 
either  party  to  the  record,  are  not  admissible.^ 

§  45/.  A  widow  conveyed  land,  derived  from  her  father  during 
her  husband's  life,  to  her  sons.  In  a  suit  by  them  against  a  pur- 
chaser of  the  land  under  an  execution  against  their  father;  held, 
his  declarations,  made,  in  the  absence  of  the  plaintiffs,  as  to  the 
conveyance  to  the  wife,  were  incompetent.^ 

§  45  g.  The  declarations  of  a  claimant  of  land,  in  possession  of 
an  adverse  holder,  made  to  a  third  party  in  his  own  favor,  are  inad- 
missible, in  an  action  brought  by  his  heirs  to  recover  the  land.^ 

§  45  h.  The  declarations,  in  respect  to  land,  of  a  stranger  who 
is  competent  as  a  witness,  against  his  interest,  are  inadmissible  in 
evidence,  unless  made  when  he  was  in  actual  possession,  and  as 
against  a  person  claiming  under  him."* 

§  45  i.  The  declarations  of  a  grantor,  in  presence  of  the  grantee, 
though  in  possession,  and  though  he  afterwards  conveys  part  of 
the  land  in  his  own  name  to  a  third  person,  and  procures  a  release 
of  that  part  from  the  first  grantee,  are  inadmissible  to  prove  the 
conveyance  fraudulent  against  creditors.^ 

§  45  y.  The  declarations  of  a  mortgagee,  made  before  the  sale, 
as  to  his  intention  to  buy  in  the  property,  through  the  agency  of 
others,  for  the  benefit  of  the  mortgagor,  and  to  prevent  its  being 
seized  by  other  creditors,  are  not  competent  evidence  against  the 
purchasers  at  the  sale,  in  a  suit  against  them  and  the  mortgagee 
jointly,  to  have  the  sale  set  aside  on  the  ground  of  fraud.*^ 

§  45  k.  A's  declaration,  soon  after  he  purchased  a  farm,  "  that 
he  bought  it  for  B,"  is  not  evidence  that  he  did  not  afterwards 
live  upon  the  farm  and  carry  it  on." 

§  45  /.  The  declarations  of  a  grantee,  not  a  witness  nor  a  party  to 
the  suit,  made  long  after  execution  of  a  deed,  are  not  admissible, 
where  the  deed  is  sought  to  be  impeached  for  forgery,  to  invalidate 
the  title  under  it.^ 

§  4G.  But  the  declarations  of  a  party  in  possession  of  land,  as 
to  the  nature  of  his  possession,  may  be  given  in  evidence  against 

1  Chastain  y.  Robinson,  30.  Ga.  55.  *  Gates    v.    Mowry,    15    Gray,    564; 

2  Thomas  v.  Madilan,  50  Peiin.  201.  Vroonian  i'.  Kiiifr,  3(5  X.  Y.  477. 

3  Rice  V.  Ciinninuham,  2'J  Cal.  4'J2.  •>  Malione  v.  Williams,  3'J  Ala.  202. 

4  Wood  V.  Uicks,'  3G  Mis.  326.  .''  Bell  v.  Woodward,  47  N.  H.  ASO. 

8  Hatch  V.  Bates,  54  Maine,  136. 


468  EVIDENCE.  [book   IV. 

all  persons  claiming  under  him.^  Or,  as  is  elsewhere  held,  the 
declarations  of  a  person  in  possession,  as  to  his  title,  and  as  to  a 
fact  which  it  is  competent  to  establish  by  parol  evidence,  are 
admissible  against  and  in  favor  of  persons,  claiming  under  him, 
who  subsequently  came  into  possession.^  Thus  the  declara- 
tion of  an  ancestor,  that  he  held  as  tenant  of  A,  is  admissible 
in  an  action  brought  by  A  against  the  heir.^  So  where  the 
question  is,  whether  a  frame  building  placed  by  A  upon  land, 
without  being  fixed  on  the  soil,  became  a  part  of  the  realty, 
the  statements  of  A,  being  at  the  time  in  possession  claim- 
ing title,  as  to  his  intention  in  so  placing  it,  are  admissible  in 
evidence,  although  he  is  not  a  party  to  the  suit.'^  So  declarations 
made  by  a  tenant  when  he  first  took  possession,  in  disparagement 
of  his  title,  are  admissible  in  support  of  the  title  of  his  landlord, 
in  trespass  to  try  title  brought  against  them.^  So  where  an  entry 
was  made,  in  an  alcalde's  book  of  grants,  on  the  margin  of  a  grant, 
of  the  words  ''not  taken,"  and  lines  of  cancellation  were  drawn 
across  the  grant ;  held,  in  an  action  by  the  heirs  of  the  grantee, 
that  the  alcalde  might  testify  as  to  what  was  said  and  done  as  to 
the  cancellation,  although  the  grantee  was  not  present.^  So,  upon 
a  writ  of  entry,  the  declarations  of  a  former  tenant  in  possession, 
limiting  or  qualifying  his  right  arising  from  possession,  are  admis- 
sible, notwithstanding  he  may  have  contracted  for  a  conveyance 
to  the  disseisor  in  fee,  where  he  acted  as  the  agent  of  the  disseisee, 
with  the  knowledge  of  the  disseisor.'^  So  on  the  issue  of  fraud 
in  the  conveyance  of  an  unfinished  mill  by  A,  the  mill  being  held 
by  A  and  B,  and  B  having  sold  to  A,  but  remained  in  posses- 
sion ;  declarations  by  B,  after  such  sale,  that  he  held  it  as  part- 
owner  with  A,  are  admissible  in  evidence.^  So  declarations  of 
a  vendor,  previous  to  the  sale,  that  he  intended  to  negotiate  a 
colorable  sale,  for  the  purpose  of  obtaining  time  to  meet  his  lia- 
bilties,  are  admissible  to  show  fraud  in  the  sale.^  So  the  declara- 
tions of  an  occupant  under  a  bond  for  a  deed  are  evidence  of  the 
boundaries  of  the  land  against  a  stranger,  in  favor  of  one  who 

1  Bell  V.   Woodward,  46   N.   H.    315 ;  4  Kelley  v.  Kelley,  20  Wis.  443. 

BoUo  V.  Navarro,  33  Cal.  459.  5  Wallace  v.  Wilcox,  27  Tex.  60. 

-  Kcator  v.  Dimniick,  46   Barb.   158 ;  '^  Rice  v.  Cunningham,  29  Cal.  492. 

Thomas  v.  Wheeler,  47  Mis.  363.    Contra,  ^  Peabody  v.  Ilewett,  52  Maine,  33. 

Osgood  V.  Coates,  1  Allen,  77  (as  to  decla-  ^  Gregory    v.    Frothingham,    1    Nev. 

rations  in  favor).  253. 

a  Gibney  r.  Marchay,  34  N.   Y.   301 ;  »  lb. 
Arthur  v.  Gayle,  38  Ala.  259 ;   Baker  v. 
Haskell,  47  N.  H.  479. 


CH.    HI.]  ADMISSIONS    AND    DECLARATIONS.  469 

afterwards  takes  an  assignment  of  the  bond  and  a  deed  from  the 
obh'o'or.^  So,  where  an  adverse  possession  of  twenty  years  is 
claimed  by  the  tenant,  it  is  competent  to  show,  by  contemporane- 
ous declarations  of  those  whose  possession  is  relied  upon,  and  by 
their  payment  of  rent  to  the  demandant's  predecessor,  and,  if 
the  possession  relied  upon  is  traced  through  executors  who  held 
for  the  benefit  of  heirs,  by  the  admissions  of  the  heirs,  tliat  the 
possession  was  not  adverse.''^  But  such  declarations  must  be 
ante  litem  motam.^  So  declarations  of  a  former  owner  of  land, 
made  during  his  ownership,  and  tending  to  prove  a  right  of  way 
over  it,  are  competent  evidence  against  the  present  owner;  though 
those  tending  to  disprove  the  right  of  way  are  incompetent  in 
his  favor.^  So  declarations  of  a  grantor  before  the  grant,  to  the 
effect  that  he  had  previously  sold  the  land  to  another,  are  admis- 
sible against  the  grantee  and  all  who  claim  under  him.^  So 
declarations  of  an  owner  of  land  while  in  possession,  concerning 
a  boundary  line,  and  in  disparagement  of  his  own  title,  are  admis- 
sible in  a  trial  of  title  where  a  subsequent  grantee  is  a  party .^ 
So  the  declarations  of  a  person  in  relation  to  the  boundary  of  land 
he  once  owned  are  held  competent  evidence."  (a) 

§  46  a.  Declarations  made  by  an  intestate  in  his  own  favor,  to 
establish  title  in  himself,  are  not  admissible  for  his  administratrix 
in  an  action  brought  for  its  recovery.^ 

§  46  b.  In  a  suit  to  enforce  a  trust  of  lands  purchased  with  the 
plaintiffs'  money  by  their  father,  evidence  is  admissible,  after  bis 
death,  of  declarations  made  by  him,  at  the  time  he  purchased  and 
afterward,  that  he  held  it  in  trust  for  them,^ 

1  Niles  V.  Patch,  13  Gray,  254.  6  Bower  v.  Earl,  18  Mich.  ,367. 

2  Hale  V.  Silloway,  1  Allen,  -21.  7  Dawson  v.  Mills,  32  Penn.  302. 

3  Lefier  v.  Doyle,  11  Kich.  109.  »  Wiiitfield  i:.  Whitfield,  40  Miss.  352. 
*  Blake  v.  Everett,  1  Allen,  248.  '-'  Robinson  v.  Robinson,  22  Iowa,  427. 
5  Dickerson  v.  Crisman,  28  Mis.  134. 

(a)  One  boundary  in  a  deed  was  de-  In   trespass    to    try    title,    where    the 

scribed   as    rnnninji  from    a    nionnnient,  boundaries    of  the   Ford  leiic/iic   came    in 

"  tlience  in  said  wall  as  it  now  stands,"  to  controversy  ;    held,  the   declarations  and 

another  moiuunent.     The  wall  e.xtendoil  admissions     of     Ford,    before    his    sale 

from  each  inoninncnt  strai<iht  towards  the  of    the    league    to     the     plaintiff,    were 

other,  but  witii  an  interval  of  several  rods  admissible  in  deterniininfi  the  true  boun- 

in  the  middle,     llehl,  for  the   i>uri)iise  of  diiries  of  the  sale  as  made.  —  not  for  tiie 

showiufi  that  a  wooden  fence,  built  circuit-  i)iiri)ose  of  clianj^injif  the  survey.     Bird  v. 

ously  across  the  interval,  so  as  to  include  Pace,  '20  Tex.  487. 

less  land  than  a  straight  continuation  of  Declarations  of  a  plaintiff  in  eject- 
the  wall  would  have  included,  was  the  nient,  that  he  had  never  felt  satisfied 
true  boundary,  declarations  as  to  the  with  a  boundaiy  line  in  dispute,  are  corn- 
fence,  maile  by  the  grantee  upon  the  land  petent  only  to  rebut  evidence  of  acquies- 
soon  after  the  delivery  of  tlie  deed,  and  cence.  Murphy  v.  Griggs,  41  Geo.  464. 
even  nine  years  alter,  were  admissible. 
Davis  V.  Sherman,  7  Gray,  291. 


470  EVIDENCE.  [book   IV. 

§  47.  As  we  have  already  intimated,  an  act  may  generally  be 
proved  as  an  admission  against  the  party  doing  such  act.^  Thus 
in  an  action  brought  for  an  assault,  by  one  woman  against  another, 
the  two  living  in  different  parts  of  the  same  house ;  the  defence 
being  set  up,  of  an  accidental  collision,  evidence  is  competent  for 
the  plaintiff',  that,  although  she  was  several  days  confined  to 
her  bed  from  the  effects  of  the  injury,  and  under  the  care  of  a 
physician,  the  defendant  did  not  visit  her,  or  show  her  any  atten- 
tion or  sympathy .2  And  the  acts  of  an  agent  will  bind  the  prin- 
cipal. Thus  a  ship-owner  may  be  held  liable  for  all  acts  of  the 
alleged  master,  done  in  the  ordinary  scope  of  his  employment,  by 
evidence  of  his  having  actual  command  of  the  ship.^  So  the  acts 
of  an  agent,  in  perpetrating  a  fraud  under  instructions  from  his 
principal,  are  admissible  against  the  principal.* 

§  48.  The  acts  of  a  party  are  sometimes  received  in  his  own 
favor.  Thus,  in  an  action  against  a  sheriff"  for  carrying  away  the 
plaintiff" 's  property  as  another's,  it  is  competent  for  the  plaintiff" 
to  show  acts  of  ownership,  and  tending  to  prove  possession.^  So 
in  an  action  by  a  consignee  of  goods  against  a  carrier  for  failing 
to  deliver  them,  the  fact  that  the  plaintiff",  after  the  goods  should 
have  been  delivered,  made  inquiries  for  them  of  the  carrier,  is 
admissible  in  evidence  of  the  loss.^  But,  in  an  action  for  money 
lost  at  play  by  a  clerk  of  the  plaintiff",  he  cannot  prove,  that  the 
clerk  omitted  to  enter  money  collected  for  him  in  the  clerk's 
collection-book,  by  such  book.'*  So,  where  the  plaintiff"  claims 
that  he  had  acquired  an  interest  in  certain  company  mining 
claims  by  purchase  ;  evidence  that  he  had  acted  as  a  member  of 
the  company,  paid  assessments  on  his  interest,  and  been  received 
as  a  member,  was  held  incompetent  and  irrelevant  to  prove 
title.8 

§  49.  In  general,  written  documents,  as  mere  declarations,  are 
regarded  as  only  hearsay,  and  on  that  ground  inadmissible  in 
evidence. 

§  50.  In  an  action  of  trespass  for  placing  rocks  and  rubbish  on 
the  plaintiff"'s  land,  the  boundaries  being  in  dispute ;  a  photo- 

1  Warner  v.  Scott,  41  Penn.  274.     See         5  Fitch  v.  Brockman,  3  Cal.  348. 
Bradlev  v.  Pike,  34  Verm.  215.  ^  Ingledew  v.  Northern,  &c.,  7  Gray, 

2  State  V.  Alford,  31  Conn.  40.  86. 

3  Story    on   As;encv,   §§    116-123  ;   2  ^  Comer  v.  Pendleton,  8  Md.  337. 
Greenl.  Ev.  48,  f  64. '                                        8  Khig  v.  Raudlett,  33  Cal.  318. 

*  Lunday  v.  Thomas,  26  Geo.  537. 


CH.    III.]  ADMISSIONS   AND    DECLARATIONS.  471 

graph  of  the  land,  ofTe red  merely  as  a  "chalk  representation," 
and  not  verified  by  the  oath  of  the  artist,  thou<ih  t)ther  parties 
testify  to  its  correctness,  is  not  of  course  admissible  in  evidence, 
but  its  admission  is  a  question  of  discretion.^ 

§  51.  A  deed  or  bill  of  sale  is  competent  evidence,  though  it 
does  not  show  the  identity  between  the  property  mentioned 
therein  and  that  sued  for ;  because  the  identity  must  be  shown 
by  other  proof.- 

§  52.  And  different  rules  apply  to  documents  of  an  official  char- 
acter, from  those  which  govern  the  admission  or  exclusion  of  other 
writings.  Thus,  where  a  sheriff  justifies  the  taking  of  personal 
property  under  a  writ,  the  writ  and  return  must  be  given  in 
evidence ;  or,  if  it  has  not  been  returned,  proof  must  be  made 
that  the  property  was  taken  under  it.^  So  in  an  action  of  trespass 
for  breaking  a  close  and  carrying  off  liquors,  where  the  defence 
is  justification  under  a  warrant  issued  by  a  justice,  under  the  act 
for  prevention  of  the  illegal  sale  of  liquors,  the  record  of  the 
warrant  and  of  the  proceedings  before  the  justice  is  competent 
evidence.^  So  in  an  action  by  the  assignee  of  an  insolvent  debtor 
against  an  officer,  to  recover  the  value  of  property  attached  and 
sold  by  him  on  mesne  process  against  the  debtor,  the  defendant, 
after  proving  a  demand  upon  him  for  the  property  by  a  mort- 
gagee thereof,  may  give  in  evidence  a  writ  subsequently  sued 
out  against  him  by  the  mortgagee,  containing  a  bill  of  particulars 
of  the  property,  for  the  purpose  of  showing  that  the  mortgagee 
was  still  insisting  on  his  rights.^  So  in  an  action  against  the 
assignee  of  an  insolvent  debtor,  by  one  claiming  under  a  convey- 
ance alleged  to  be  void  as  a  preference  made  by  the  debtor  within 
six  months  of  the  commencement  of  the  proceedings  in  insol- 
vency, the  record  of  the  proceedings  is  admissible  in  evidence 
for  the  defendant,  for  the  purpose  of  proving  the  time  of  the 
commencement  of  proceedings.^  So  it  has  been  held  (tiiougli 
since  questioned),  that  the  schedule,  proofs,  and  list  of  debts  in 
insolvency  are  competent  evidence  to  prove  the  debtor's  insol- 
vency, in  an  action  brought  by  his  assignee  to  recover  property 
alleged  to  have  been  fraudulently  conveyed.^     So  letters  of  ad- 

1  HoUenbeck  i'.  Rowley,  8  Allen,  473.  »  Caverly  v.  Gray,  7  Gray,  216. 

2  Sadler  v.  Anderson,  17  Tex.  215.  •>  Bartlett  v.  Decreet,  -1  (iray,  111. 

3  Glascock  V.  Nave,  15  Ind.  457.  1  lleywood  v.  Reed,  ib.  574. 
*  Plummer  v.  Harbiit,  5  Clarke  (Iowa), 

808. 


472  EVIDENCE.  [book   IV. 

ministration  are  competent  evidence  of  the  due  appointment  of 
the  administrator,  where  a  title  to  real  estate  is  set  np  under  an 
administrator's  deed.^  So,  for  the  purpose  of  proving  that  the 
defendant  has  fraudulently  conveyed  his  real  estate  to  third 
persons,  copies  of  the  deeds  thereof  from  the  registry  are  admis- 
sible, as  the  originals  are  not  presumed  to  be  in  the  possession  of 
either  party  to  the  suit.^  So  where,  in  an  action  for  real  estate, 
the  defendants  claim  title,  in  support  thereof  they  may  offer  a 
record  of  proceedings,  under  a  petition  by  the  administrator  of 
the  plaintiff's  father,  against  the  widow  and  heirs,  to  sell  lands; 
and  it  appearing,  by  the  record,  that  it  was  shown  "  to  the  court, 
that  due  notice  had  been  given  to  the  defendants,"  the  plaintiff, 
an  heir,  cannot  oppose  the  record,  by  evidence  that  he  had  never 
been  served  with  process  in  such  proceeding,  nor  appeared, 
and  that  the  court  had  therefore  no  jurisdiction  as  to  him.^  So, 
in  ejectment,  the  plaintiff,  claiming  under  execution  sale,  may 
offer  in  evidence,  to  prove  the  judgment,  the  journal  entry,  the 
execution  issued  for  the  debt,  with  the  indorsement  thereon,  and 
the  files  in  the  case,  showing  a  declaration,  plea,  &c.,  the  writ  of 
error  by  the  defendant,  and  return  thereto,  being  a  transcript  of 
the  judgment-record  and  proceedings  in  the  Supreme  Court, 
where  judgment  was  aflSrmed.  And  where  the  journal  entry  is 
defective,  the  former  record,  signed  by  the  clerk  and  judge  of  the 
Circuit  Court,  and  sent  up  to  the  Supreme  Court  in  return  to 
the  writ  of  error,  is  evidence  both  of  the  judgment  and  record  of 
the  Circuit  Court.*  So  in  an  action  for  injuries  sustained  from  a 
defect  in  a  highway ;  to  prove  the  existence  of  the  highway,  the 
plaintiff  introduced  a  book  of  records,  kept  by  the  town-clerk, 
showing  a  record  of  the  original  application  to  the  selectmen  for 
the  laying  out,  the  order  of  notice  thereon,  and  the  return  of  the 
laying  out,  signed  by  two  of  the  selectmen,  which  record  had 
been  duly  entered  in  the  book  by  the  town-clerk  for  the  year 
when  the  highway  was  laid  out,  but  was  not  certified  or  attested 
by  him,  in  his  official  capacity,  as  a  true  copy  of  the  original 
record.  It  appearing,  that  the  original  record  was  burned  by  acci- 
dent; that  the  highway  was  laid  out  within  twenty  years;  and  that 
the  town-clerk  was  dead  at  the  time  of  trial :  held,  that  there 

i  Remick  v.  Butterfield,  11  Fnst.  70.  3  Richards  v.   Skiff,  8  Ohio    (N.    S.), 

'i  Bhinchard  v.  Young,  11  Cush.  341.        586. 

*  Emery  v.  Whit  well,  6  Mich.  474. 


CH.    III.]  ADMISSIONS   AND    DECLARATIONS.  473 

was  com])Gtent  secondary  evidence,  upon  wliich  a  jury  might 
properly  find  a  legal  laying  out  of  the  highway.^ 

§  53.  Declarations  are  sometimes  objected  to  on  the  ground  of 
irrelevancy.  Thus,  that  two  persons,  not  agents  of,  nor  authorized 
by,  the  plaintiff,  in  a  suit  to  recover  land  upon  which  the  defend- 
ants erected  their  wall,  said  to  the  defendant's  agents,  when  dig- 
ging, that  they  were  on  the  plaintiff's  land,  is  irrelevant,  and  not 
admissible  in  evidence  for  the  plaintiff.^  So,  in  an  action  under 
New  York  Sts.  1847  and  1849,  for  negligence  resulting  in  death, 
the  negotiations  of  the  plaintiff  with  the  defendant,  with  refer- 
ence to  a  settlement,  are  not  admissible,  for  the  purpose  of  showing 
the  harsh  and  oppressive  conduct  of  the  defendant  in  resisting  the 
claim;  his  liability  to  pay  some  damages  not  having  been  denied.^ 
But  in  some  cases  evidence  is  competent,  though  not  directly 
relevant ;  its  weight  and  effect  being  for  the  jury.  Thus,  in  an 
action  against  one  for  instigating  his  slave  to  burn  the  plaintiff's 
house,  evidence  that  a  few  weeks  after  the  burning  his  brother- 
in-law's  house  was  burned  by  an  incendiary,  taken  in  connection 
with  the  fact,  that  a  week  after  the  defendant  was  heard  to  say 
to  the  slave,  "  That's  right,  damn  'em,  burn  'em  up ;  "  was  held 
proper  for  the  jury;  they  were  to  consider,  but  with  great  cau- 
tion, what  the  defendant  meant  and  referred  to.'* 

1  Hall  V.  Manchester,  40  N.  H.  410.  3  Green  v.  Hudson,  «Scc.,  32  Barb.  25. 
See  Bebee  i-.  Sclieidt,  13  Ohio  St.  40G.              4  Bell  v.  Troy,  35  Ala.  184. 

2  Carroll  v.  Granite,  &c.,  11  Md.  399. 


474 


EVIDENCE. 


[book  IV. 


CHAPTER   lY. 


"  RES   INTER   ALIOS    ACTA." 


1.  General  rule. 

2.  Exceptions —  fraud,  neglect,  illeo^alitj'. 
12.  Actions  itgainst  towns,  railroads,  &c. 
17.  Injuries  caused  by  gas. 


22.  Questions  of  time. 

24.  Evidence  of  reputatiim. 

25.  Evidence  as  to  value  and  amount. 
34.  Motive,  intent,  malice. 


§  1.  In  general,  evidence  must  strictly  relate  to  the  matter  in 
controversy,  and  to  the  acts  and  declarations  of  the  parties  to  the 
suit.  "  Neither  the  declarations,  nor  any  other  acts  of  those  who 
are  mere  strangers,  or,  as  it  is  usually  termed,  any  '  res  inter 
alios  acta,'  is  admissible  in  evidence  against  any  one,  as  afford- 
ing a  presumption  against  him  in  the  way  of  admission,  or  other- 
wise ...  It  would  be  contrary  to  the  first  and  most  obvious 
principles  of  justice,  that  any  one  should  be  bound  by  <he  acts, 
or  concluded  by  the  declarations  or  assertions  of  others,  to  which 
he  was  nowise  privy. "^  In  a  late  case,  evidence  of  this  nature  is 
referred  to  as  "  testimony  concerning  collateral  facts,  which  ur- 
nished  no  legal  presumption  as  to  the  principal  facts  in  dispute, 
and  which  the  defendants  were  not  bound  to  be  prepared  to 
meet."  ^  (a) 

»  1  Stark.  Ev.  49,  §  82.  See  3  ib.  6  Cush.  398.  See  Hall  v.  Goodson,  32 
1299.  Ala.  277. 

'-  Per  Metcalf,  J.,  Collins  v.  Dorchester, 


(o)  In  a  suit  to  recover  the  value  of  a 
slave  from  tlie  person  hiring  him,  on  the 
ground  that  the  slave  was  killed  on  the 
premises,  and  while  in  the  possession,  of 
the  person  so  hiring,  and  that  he  refused 
to  account  for  his  death ;  held,  the  coro- 
ner's inquest  over  the  body  of  the  slave 
was  inadmissible  as  evidence,  being  "ret 
inter  alios  acta."  Ford  v.  Simmons,  13 
La.  An.  387.  In  an  action  for  obstructing 
a  mill-race,  by  discharging  eobs  from  a 
shelling-machine  into  it,  evidence  of  the 
natural  consequence  of  the  acts,  in  com- 
bination with  the  known  action  of  the 
ciirrent  of  the  race,  is  inadmissible.  Pan- 
ton  V.  Norton,  18  111.  496. 


Evidence  of  proceedings  of  a  court,  in 
relation  to  the  legality  of  a  levy,  is  inad- 
missible at  the  trial  of  a  claim  to  other 
property  levied  on  by  tlie  same  ^/i.  fa. 
Chastain  v.  Robinson,  30  Ga.  55. 

Upon  a  trial  for  maliciously  shooting 
and  killing  a  mare,  it  appeared  that  two 
mares  were  shot  at  the  same  time,  but 
only  one  was  killed.  Held,  evidence 
of  the  kind  of  shot  found  in  the  other 
was  admissible,  to  show  that  such  sliot 
was  of  the  same  size  as  that  found  at  the 
defendant's  house  on  the  day  of  the  shoot- 
ing.    State  V.  Wholeham,  22  Iowa,  297. 

The  fact,  that  certain  changes  from 
"  blue-joint  to  red-top  "  grass  were  going 


CH.    IV.]  RES    INTER   ALIOS    ACTA.  475 

§  2.  To  this  general  rule,  however,  there  are  some  exceptions. 
Prominent  among  these  is  the  case  of  alleged /ra?/rf.  "Where  the 
actual  bona  fide  intention  of  parties  is  in  question,  whatever  is 
directly  calculated  to  throw  liglit  upon  their  probable  motives,  or 
to  illustrate  their  existing  relations  and  the  feelings  likely  to  in- 
fluence their  action,  is  competent  for  the  consideration  of  the 
jury.^  "  The  transactions  must  be  so  connected  in  point  of  time, 
and  so  similar  in  their  other  relations,  that  the  same  motive  may 
reasonably  be  imputed  to  them  all.  It  is  not  necessary,  however, 
that  the  means  of  accomplishing  each  fraud  should  be  the  same."- 
Hence,  to  show  the  fraudulent  intent  of  a  transaction,  evidence 
of  previous  and  subsequent  acts  is  admissible.-^  Thus,  in  an 
action  for  deceit  in  a  sale,  other  representations  made  by  the  defend- 
ant, at  the  time  of  making  those  set  forth  in  the  declaration,  and 
respecting  the  same  subject-matter,  are  admissible  in  evidence, 
for  the  purpose  of  enabling  the  jury  to  judge  more  accurately 
of  the  meaning  of  the  words  relied  upon  to  sustain  the  action."* 
So,  in  a  suit  in  chancery,  the  petitioners  claimed,  that  the  respond- 
ents had  combined  to  defraud  them  in  the  sale  of  a  tract  of 
land  in  Virginia,  as  containing  gold  when  it  contained  none,  and 
that  B,  one  of  the  respondents,  at  different  times  when  the  peti- 

1  Blodgett,  &c.  V.  Farmer,  41  N.  H.  v.  Younp:,  39  Penn.  455  ;  Curtis  v.  IMoore, 
398.  20  iMil.  96  ;  Craig  v.  Wanl,  36  Barb.  377  ; 

2  Per  Comstofk,  J.,  18  N.  Y.  589.  Iloxie  v.  Home,  &c.,  32  Conn.  22. 

8  Butler  V.  Collins,  12  Cal.  457.     See  *  Pedrick  v.  Porter,  5  Allen,  324. 

French  v.  Wiiite,  5  Duer,  254  ;  Stauffer 

on  in  other  meadows  in  the  vicinity,  is  not  habits  of  intemperance,  so  as  to  unfit  him 

compotont    to    di.sprovo    that    a    similar  for  the  duties  of  his   station ;   as  bearing 

change    was    caused   by   overflow   occa-  to  some  extent  on   the   question  of  the 

sioned  bv  a  dam.     Dorman  v.  Ames,  12  defendant's  carelessness.     Warner  v.  New 

Minn.  451.  York,  &c.,  45  Barb.  299. 

In  an  action  against  a  copper-manufactnr-  On  an  issue  as  to  whether  notes  sued 
ing  company,  for  injury  caused  to  land  by  \\\m\\  were  given  for  a  gaming  considera- 
poisonous  substances  coming  from  a  mill ;  tion,  the  defendant  cannot  prove,  that 
evidence  of  a  person,  not  an  exjiert,  is  in-  when  drunk  he  had  a  propensity  to  gam- 
admissible,  to  siiow  the  condition  of  lands  ble,  in  connection  with  the  facts,  that  tiie 
not  belonging  to  the  plaintitt',  some  of  payee  was  the  keeper  of  a  gambling  house 
which  were,  and  some  were  not,  exjiosed  in  the  place  where  the  notes  were  given, 
to  these  substances.  Lincoln  v.  Taunton,  and  not  engaged  in  any  other  business, 
9  Allen,  181.  nor  the  owner  of  any  projierty  ;  that  an- 

After  evidence,  in  an  action  against  a  other  note  of  the  same  date  and  amount 

railroad  for  an  injury  arising  from   a  col-  was  given  to  an  employi'  of  such  keeper  ; 

lision  between   tiie  defendant's  cars  and  that  all  the  notes  were  in  the  handwriting 

the  i)laintiff's  wagon,  at  a  street  crossing,  of  a  jirofessional  gambler,  who  was  also 

tending  to   prove  that   the   flagman  sta-  a  frequenter   of  such    house ;    and   that 

tioned  there  was  intoxicateil  and  was  ab-  upon  the  day  when  the  notes  were  given 

sent  from  his  i)ost :  the  iilaintifl'may  show  tiie  defendant  was  drunk.     Thompson  v. 

that   the    flagman    had  for   some    weeks  Bowie,  4  Wall.  463. 
before  the  occurrence  been  indulging  in 


476  EVIDENCE.  [book   IV. 

tioners  were  about  to  examine  the  tract,  had  mingled  gold-dust 
with  the  soil  in  particular  places,  and  then  caused  them  to  exam- 
ine the  soil  in  those  places  and  find  the  gold.  As  a  part  of  the 
evidence  going  to  establish  this  fact,  they  offered  an  account-book 
kept  at  a  neighboring  mine,  containing  entries  of  sales  of  gold- 
dust  to  B  just  before  the  times  when  they  made  the  examinations, 
for  the  purpose  of  showing  that  B  had  gold-dust  in  his  possession 
at  those  times.  The  book  was  regularly  kept,  and  the  clerk  who 
made  the  entries  was  dead.  Held,  as  a  part  of  the  chain  of 
evidence  going  to  establish  the  fact  in  question,  it  was  proper  for 
the  petitioners  to  show  that  B  had  gold-dust  in  his  possession  at 
the  times  in  question,  that  evidence  of  the  sales  to  him  at  the 
neighboring  mine  was  pertinent  to  prove  this  fact,  and  that  the 
entries  in  the  book  were  admissible  in  proof  of  the  sales  ;  also,  that 
the  declarations  of  such  clerk,  made  a  long  time  after  the  entries 
were  made,  were  not  admissible  for  the  purpose  of  impeaching  the 
correctness  of  the  entries. ^  So,  on  a  motion  to  vacate  an  order 
of  arrest  granted  on  the  ground  of  fraud,  evidence  of  other  con- 
current frauds  is  admissible  to  show  the  intent.  '*  It  was  not  a 
charge  of  a  new  fraud,  but  was  corroborating  evidence  of  the 
fraudulent  intent  already  charged.  It  was  evidently  known  to 
the  defendant.  .  .  .  He  should  have  anticipated  the  disclosure, 
at  the  hearing,  of  so  important  a  fact,  and  have  been  prepared  to 
meet  it  in  advance."^ 

§  3.  There  are  many  cases,  however,  where  evidence  of  this 
nature  has  been  held  not  admissible.^  And  though,  in  questions 
of  fraud,  great  latitude  is  given  to  the  admission  in  evidence  of 
collateral  facts  tending  to  prove  the  fraud,  yet  those  facts  must 
be  proved,  precisely  as  in  other  cases."^ 

§  4.  In  an  action  to  recover  possession  of  property,  upon  the 
issue  whether  the  title  passed  by  delivery  to  the  defendant,  who 
failed  soon  afterwards,  evidence  of  other  purchases  made  by  him 
at  about  that  time,  for  which  he  also  failed  to  pay,  is  inadmis- 
sible, there  being  no  proof  of  fraud.^  So  on  trial  of  an  issue, 
whether  a  bank-bill,  inclosed  and  mailed  to  a  party  at  A,  was 
received  by  him ;  evidence  is  not  admissible,  that  there  were 
found  secreted  in  the  house,  occupied  at  that  time  by  the  mail- 

1  Asbmead  v.  Colby,  26  Conn.  287.  *  Douglass  v.  Mitchell,  35  Penn.  440. 

2  Ballard  v.  Fuller,  32  Barb.  68 ;  per  5  Durbrow  v.  McDonald,  5  Bosw. 
Leonard,  J.,  ib.  72.  130. 

3  See  Murfey  v.  Brace  23  Barb.  561. 


CH.    IV.]  RES    INTER    ALIOS    ACTA.  477 

carrier,  over  whose  route  the  letter  might  have  come,  various 
opened  letters  directed  to  persons  in  A.^  So  in  an  action  by  a 
vendor  to  recover  the  goods  i'rom  the  buyer  for  his  fraudulent 
representations ;  the  plaintiff  cannot  prove  that  the  defendant 
said  he  did  not  intend  to  buy  more  goods  of  other  parties,  because 
they  refused  to  trust  him  without  security .^ 

§  5.  In  an  action  to  set  aside  as  fraudulent  against  creditors  a 
sale  made  by  A  &  Company  in  August ;  evidence  is  competent, 
of  an  assignment  made  by  A  to  his  son  in  the  previous  May,  alter 
the  company  had  become  embarrassed,  and  appearing  to  be  part 
of  a  general  plan  of  A  to  put  his  property  out  of  the  reach  of  his 
creditors  ;  also,  of  the  consideration  and  mode  of  payment  there- 
for. But  not  that  notes  given  by  purchasers  at  the  alleged  fraud- 
ulent sale  had  been  paid  since  the  commencement  of  tlie  suit. 
Such  "  payment  .  .  .  could  not  change  the  character  of  the  trans- 
action. The  defendants  cannot  make  evidence  to  purge  the  fraud 
at  so  late  a  period."  ■" 

§  6.  Upon  the  inquiry  whether  a  vendee  procured  the  sale  of  the 
goods  through  fraud,  evidence  is  admissible,  of  purchases  made 
by  him  at  or  about  the  same  time,  involving  similar  frauds,  and 
also  of  contemporaneous  sales  procured  by  affirmative  represen- 
tations of  his  solvency,  though  the  issue  is  on  fraudulent  conceal- 
ments of  facts  material  to  his  credit ;  but  not  statements  made  to 
a  creditor  whose  claim  was  not  due,  for  the  purpose  of  quieting 
his  alarm  about  his  security,  accompanied  by  an  offer  to  return 
the  goods,  which  offer  was  declined  in  consequence  of  the  state- 
ments.^ 

§  7.  For  the  purpose  of  proving,  that  a  party  would  not  have 
been  likely  honestly  to  have  the  amount  of  money  shown  to  be  in 
his  possession,  and  as  tending  to  confirm  other  evidence  of  dis- 
honesty in  appropriating  the  money  of  his  employer;  evidence  is 
admissible,  to  show  that  he  has  for  several  years  been  living  at  a 
rate  of  expenditure  far  beyond  his  apparent  means. ^  So,  in  a  suit 
by  an  assignee,  for  property  alleged  Xo  have  been  conveyed  in 
fraud  of  the  insolvent  law,  evidence  that  the  debtor  had  expen- 
sive habits,  and  was  inattentive  to  business,  and  that  these  facts 
were  known  to  the  defendant,  and  of  the  debtor's  general  reputa- 

1  Pike  V.  Crehore,  40  Maine,  503.  *  Hall  v.  Naylor,  18  N.  Y.   (i  Smith) 

2  iMiirfey  v.  Brace,  2:^.  Barl).  5(31.  588. 

^  Angrave  v.  Stone,  45  Barb.  35;  per         ^  Ilackett  v.  King,  8  Allen,  144. 
Leonard,  J.,  ib.  36. 


478  EVIDENCE.  [book  IT. 

tion  as  to  insolvency,  is  competent,  for  the  purpose  of  proving 
that  the  defendant  had  reasonable  cause  to  believe  the  debtor 
insolvent.  "  All  experience  shows  that  such  courses  .  .  .  are 
commonly  if  not  inevitably,  destined  to  end  in  failure  and  bank- 
ruptcy. .  .  .  The  conduct  of  a  party  and  his  habits  —  whether 
of  frugality  or  of  extravagance  in  his  expenditures  —  are  among 
the  first  things  which  men  of  ordinary  care  and  prudence  usually 
consider  in  forming  a  judgment  respecting  his  pecuniary  credit 
and  responsibility."  ^ 

§  8.  Evidence  is  admissible,  in  a  suit  against  a  mandatary,  for 
the  loss  of  personal  property  entrusted  to  him  and  alleged  by  him 
to  have  been  lost,  of  his  pecuniary  circumstances,  and  of  his  good 
character  before  the  alleged  loss,  in  rebuttal  of  testimony  that  he 
was  seen  in  possession  of  property,  buying  and  selling,  <fec.,  sub- 
sequent to  such  loss.^ 

§  9.  In  an  action  against  a  postmaster  for  negligence,  by  means 
of  which  a  money-letter  addressed  to  the  plaintiff,  and  proved  to 
have  reached  his  office,  was  there  lost ;  evidence  of  the  exposed 
manner  in  which  the  office  was  kept  is  admissible.  "  If  the  post- 
master had  kept  his  office  in  the  street,  or  left  it  open  at  nights  in 
his  absence  ...  it  might  reasonably  be  inferred  that  the  loss  was 
caused  by  such  exposure."^ 

§  10.  In  an  action  against  a  carrier  for  delay  in  carrying  pota- 
toes, whereby  they  were  frozen,  evidence  is  admissible,  that  the 
witness  saw  them  in  the  consignee's  w^arehouse,  and  as  to  their 
condition  a  week  or  more  after  shipment.* 

§  11.  Where  the  defence  to  a  promissory  note  is,  that  it  was 
given  for  liquors,  to  be  resold,  which  the  plaintiff  knew,  and  aided 
in  effecting,  in  violation  of  law  ;  bills  for  liquors  previously  sold  by 
the  plaintiff  to  the  defendant,  though  not  shown  to  be  the  liquors 
which  were  the  consideration  of  the  note  in  suit,  are  admissible 
in  evidence,  to  show  the  course  of  dealing  between  the  parties, 
in  connection  with  the  plaintiff's  knowledge  that  the  defendant 
was  a  dealer  in  liquors.^ 

§  12.  Questions  of  this  nature  have  often  arisen,  in  actions 
against  towns  and  railroad  corporations,  for  injuries  arising  from 

1  Simpson  v.   Carleton,  1  Allen,  109  ;  3  pord  v.  Parker,  4  Ohio  (N.  S.),  576 ; 

per  Merrick,  J.,  ib.  118.  per  Kennon,  J.,  ib.  582. 

^  McNabb  v.  Lockhart,  18  Geo.  495.  *  Curtis  v.  Chicago,  &c.,  18  Wis.  312. 

5  IlubbeU  V.  Flint,  13  Gray,  277. 


CH.    IV.]  RES   INTER    ALTOS    ACTA.  479 

their  alleged  negligence   in   the   maintenance  or  management  of 
their  roads,  (a) 

§  13.  In  an  action  against  a  turnpike  company  for  an  accident 
caused  by  not  keeping  their  road  in  repair,  evidence  is  competent 
of  its  condition  in  other  places  in  the  vicinity.^  "  One  of  the 
issues  .  .  .  was  upon  the  condition  of  the  road.  Had  the  defend- 
ant negligently  suffered  it  to  become  broken  and  indented  with 
ruts  and  fissures,  or  was  the  fissure  where  the  horse  was  injured  a 
mere  accidental  indentation  recently  made,  and  which  the  defend- 
ant had  no  opportunity  to  fill  up  and  repair?  .  .  .  Upon  the  ques- 
tion of  the  omission  of  the  defendant  to  keep  (the  road)  in  repair, 
it  was  proper  and  right  to  show  its  condition  elsewhere  in  the 
vicinity."  2  So  in  an  action  against  a  town  for  injuries  attributed 
to  the  insufficiency  of  a  highway  ;  evidence  of  the  effect  on  car- 
riages, driven  by  other  persons  than  the  plaintiff,  over  the  same 
road,  has  a  tendency  to  show  its  fitness  or  unfitness  for  public 
travel,  and  is  therefore  competent,  whether  such  carriages  are 
like  that  driven  by  the  plaintiff"  or  not,  and  without  evidence  as 
to  the  speed  or  care  with  which  they  were  driven.  "  All  these 
effects  produced  in  going  over  the  road  were  in  the  nature  of 
experiments,  to  show  the  actual  condition  of  the  road  at  the  time, 
and  whether  it  was  safe  or  unsafe.  The  more  njinutely  and 
clearly  each  one  was  understood  by  the  jury,  the  rate  and  man- 
ner of  the  driving,  the  kind  of  the  carriage  used,  and  the  exact 
effect  produced  upon  it,  the  more  valuable  would  the  evidence 
become,  but  neither  party  could  make  such  evidence  improper  by 
omitting  inquiries  that  would  elicit  all  these  particulars."^  So  in 
an  action  for  injuries  received  by  being  thrown  from  a  carriage, 
owing  to  the  fright  of  the  horse  at  the  sudden  blowing  of  a  steam 
whistle ;  the  plaintiff"  may  show  that  the  whistle  produced,  at  the 
same  time  and  place,  a  similar  effect  upon  other  horses,  and  also 
what  was  its  eff'ect  at  that  place  upon  ordinary  horses."*  So  it  is 
proper  to  show,  that  a  railroad  crossing  was  in  an  improper  con- 
dition  at    the    time   of  an    accident,  by   proof  of   its   condition 

1  Cox   V.    Westchester    Turnpike,   33  ^  Kent  v.  Lincoln,  32  Verm.  6'Jl ;  per 

Barb.  414.  Toland,  J.,  ib.  5f(7. 

•^  Per  Brown,  J.,  33  Barb.  418.  ^  Hill  v.  Tortland,  55  Maine,  438. 

(rt)  The  cases  upon  this  subject  arc  not  of  scltf  facius,  on  tlie  {ground  of  nejiloct  in 

wholly  rcconcihible.     For  an   interesting  relation  to  a  road,  and  tlie  competency  of 

and  important   case,  involving  tlie  (jnes-  evidence  to  sustain   tlic  complaint;   see 

tion  of  statutory  forfeiture  by  tlie  process  Pres.  &c.  v.  State,  lit  Md.  241. 


480  EVIDENCE.  [book   IV. 

immediately  after,  where  there  is  no  pretence  of  change.^     So  in 
an  action  against  a  town  for  injuries  received  in  consequence  of 
a  gutter's   crossing  the  highway  ;  the  defendant  may  ask  a  wit- 
ness, under  the  issue  of  ordinary  care,  whether  he  knew,  in  the 
same  town  or  others  near  it,  "  gutters  crossing  the  street  with  a 
depression  as  great."  ^     So  in  an  action  for  injuries  received  in 
consequence  of  an   obstacle  upon  the  sidewalk,  of  such  a  charac- 
ter that  tiie  attention  of  all  who  passed  that  way  would   naturally 
be  drawn  to  it,  and  their  experience  of  its  effect  in  obstructing 
travel  be  substantially  the  same  ;  evidence  that  others  passed  it 
without   harm,  when  it  was  in  the  same  condition  as  at  the  time 
when  the  plaintiff  received  her  injury,  is  admissible,  to  show  that 
it  was  not  dangerous  to  one   using  ordinary   care.-^     So  in  an 
action  against  a  town,  on  account  of  an  injury  received  from  a 
hole  in  the  highway,  the  defendant  introduced  two  selectmen  as 
witnesses,  who  testified,  that  twelve  days  after  the  accident  they 
examined  the  road,  and  found  no  such  hole.     Held,  in  rebuttal, 
A  might  testify  that,  a  day  or  two  after  the  accident,  he  passed 
over  the  road,  and  that  the  wheels  of  his  wagon  sank  into  such  a 
hole.^     But,  in  determining  the  sufficiency  of  a  road,  the  practice 
of  other  towns  is  not  admissible  in  evidence.^     So  in  an  action 
against  the  trustees  of  an  incorporated  village,  for  injuries  sus- 
tained in  consequence  of  a   highway  being  out  of  repair,  the 
defendants  cannot  prove  that  the  highway  was  worse  in  other 
places  tlian  at  the  place   of  the  accident.''     Nor,   in   an    action 
against  a  railroad  for  negligent   management    of  their   locomo- 
tive,   specific    acts    of    negligence    of   the    engineer    on    other 
occasions,  previous  and  subsequent.     "  It  would  not  only  lead  to 
collateral  inquiries,  and  so  distract  and  mislead  the  jury  from  the 
true  issue ;  .  .  .  but  it  had  no  legal  or  logical  tendency  to  prove 
the  point  in  issue.     Because  a  man  was  careless  or  negligent  of 
his  duty  in  one  or  two  specified  instances,  it  does  not  follow  that 
he  was  so  at  another  time   and  under  different  circumstances. 
Collins  V.  Dorchester,  6   Cush.  396." "'     So   in  an  action   for  an 
injury  caused  by  a  defective  bridge ;  it  is  not  competent  for  the 
defendants  to  ask  the  question,  how  the  bridge  compared  on  the 

1  Milwaukee,  &c.  v.  Hunter,  11  Wis.  *  Walker  ;;.  Westfield,  39  Vt.  246. 

160.  6  Littleton  v.  Kichardson.  32  N.  H.  59. 

-  Packard  v.  New  Bedford,  9  Allen,  ^  Hyatt  v.  Rondout,  44  Barb.  385. 

200.  7  Kobinson  v.  Fitchburg,  &c.,  7  Gray, 

3  Calkins  i'.  Hartford,  33  Conn.  57.  92  ;  per  Bigelow,  J.,  ib.  96. 


CH.    IV.]  RES   INTER   ALIOS    ACTA.  481 

day  of  the  accident,  in  respect  to  its  safety  and  state  of  repair, 
with  other  bridges  of  like  character  on  roads  of  like  amount  of 
travel.^ 

§  14.  In  an  action  for  injury  caused  in  the  upsetting  of  an 
omnibus  by  a  defective  highway,  it  appeared  that  fur  three  or 
four  rods  the  side  of  the  road  was  depressed  towards  a  ditch,  that 
the  road  was  narrow  and  the  ditch  on  its  margin,  that  the  track 
was  covered  with  ice  and  snow,  and  that  the  condition  of  the  road 
was  substantially  the  same  for  the  whole  distance.  Held,  it  was 
not  a  valid  objection  to  evidence,  offered  by  the  plaintiff,  that,  on 
the  next  day,  and  before  any  change  in  the  road,  a  cart  was  upset 
in  the  same  manner,  within  the  limits  above  stated,  that  the 
place  was  fifteen  or  twenty  feet  from  the  place  of  the  other  acci- 
dent; although  perhaps  the  whole  evidence  might  have  been 
excluded,  as  raising  a  collateral  issue,  if  generally  objected 
to.*-^ 

§  15.  In  an  action  against  an  abutter  on  a  public  street,  for 
damages  received  by  falling  into  a  survault  therein;  evidence  of 
another  defect,  unconnected  with  the  plaintiff's  injury,  is  admis- 
sible, as  a  description  of  the  premises,  and  as  tending  to  show  the 
negligence  of  leaving  such  premises  unprotected.^ 

§  16.  In  an  action  for  burning  caused  by  a  dredge,  a  witness 
cannot  be  asked,  whether  he  had  ever  known  any  accident  to 
happen  from  sparks  from  a  dredge  at  the  same  distance  from  the 
dredge.'^ 

§  16  a.  In  an  action  against  a  railroad  corporation  for  the  destruc- 
tion of  property  by  fire  communicated  from  its  engine :  if  it  is  relied 
upon  as  a  ground  of  defence,  that  no  burning  sparks  could  reach 
so  far  as  to  set  fire  to  the  property,  evidence  is  competent  to  show, 
that  the  same  engine,  using  similar  fuel,  has  emitted  burning 
sparks  which  have  fallen  at  as  great  a  distance  ;  and,  if  evidence 
has  been  introduced  in  defence,  to  show  that  other  similar  engines 
upon  other  roads  did  not  emit  sparks  which  would  set  fire  to 
buildings,  evidence  is  competent  in  reply,  to  show  that  such 
engines  upon  one  of  such  roads  have  emitted  sparks  which  com- 
municated fire.^ 

1  Bliss  V.  'Wilbraliam,  8  Allen,  5G4.  *  Teall  v.  Earton,  40  Barb.  137. 

2  Bailey  r.  'rruiubull,  31  Conn.  581.  5  Ross  v.  Buston,  &c.,  G  Allen,  87. 

3  Grier  v.  Sampson,  27  Penu.  183. 

31 


482  EVIDENCE.  [book   IV. 

§  17.  The  point  in  question  lias  arisen  in  recent  cases  relating 
to  injuries  caused  by  gas. 

§  18.  In  an  action  against  a  gas  company  for  injury  caused  by 
an  escape  of  gas,  evidence  that  the  plaintiff  and  other  members  of 
his  family,  who  occupied  the  same  house,  had  been  in  good  health 
before  the  time  complained  of,  and  that  afterwards  they  all  became 
ill,  and  that  one  of  his  daughters  died,  is  competent.  But  evi- 
dence in  defence,  that  the  illness  of  the  plaintiff  and  his  family  was 
typhoid  fever ;  that  prior  occupants  of  the  same  house  had  been 
much  afflicted  with  illness  of  the  same  class  ;  that  many  families 
had  removed  from  it  on  that  account ;  that  its  location  was  low, 
and  upon  made  land  ;  and  that  it  was  generally  regarded  and 
reputed  to  be  unhealthy  ;  —  is  incompetent.^ 

§  18  a.  In  an  action  against  a  gas-light  company  for  an  injury 
to  health  caused  by  an  accidental  escape  of  gas  from  a  main  pipe 
in  a  public  street,  from  which  it  passed  through  various  sewers 
and  drains  into  the  plaintiff's  cellar  and  house;  evidence  is  inad- 
missible, of  the  escape  of  gas  into  other  houses  at  the  time 
alleged,  and  that  the  defendants  were  negligent  in  relation  thereto, 
before  it  has  been  shown  that  gas  came  into  the  plaintiff's  house. 
Nor  can  a  physician,  who  has  been  in  practice  for  several  years, 
but  who  has  had  no  experience  as  to  the  effects  upon  the  health 
of  breathing  illuminating  gas,  be  allowed  to  testify  thereto  as  an 
expert,  notwithstanding  his  experience  in  attending  upon  other 
persons,  who,  it  is  alleged,  were  made  sick  by  breathing  gas 
from  the  same  leak.^ 

§  19.  In  an  action  against  a  gas  company  for  an  injury  to  health 
caused  by  an  escape  of  gas  from  a  main  pipe  in  the  street,  and 
thence  through  sewers  and  drains  into  the  plaintiff's  cellar  and 
house ;  evidence  is  admissible,  that  all  the  other  occupants,  pre- 
viously healthy,  became  sick  ;  and  it  is  immaterial  whether  this 
arose  from  inhaling  the  gas  of  the  defendants,  or  other  gases  from 
the  sewers  and  drains  which  it  set  in  motion ;  provided  the  plain- 
tiff was,  and  the  defendants  were  not,  guilty  of  negligence.  Mr. 
Justice  Chapman  remarked,  upon  the  latter  point,  "  The  defend- 
ants' negligence  was  as  much  the  proximate  cause  of  the  injury 
as  if  their  own  gas  had  occasioned  it.  It  would  be  like  the  case 
of  a  mill-owner  who  should  negligently  suffer  his  dam  to  give 

J     1  Hunt  V.  Lowell,  &c.,  1  Allen,  343.  2  Emerson  v.  Lowell,  &c.,  6  Allen,  146. 


CH,    IV.]  RES    INTER    ALIOS    ACTA.  483 

way,  whereby  tlie  meadow  of  his  neiglibor  below  him  is  over- 
flowed. If  the  flood  sliould  in  its  course  take  up  stones  and 
gravel,  and  carry  them  upon  the  meadow,  the  mill-owner  would 
be  liable  as  well  for  the  damage  caused  by  tlie  stones  and  gravel 
as  for  the  damage  caused  by  the  water."  ^ 

§  20.  In  an  action  for  injury  to  land  by  gas  from  a  copper-mill, 
evidence  is  not  admissible,  except  from  experts,  of  like  injury 
from  the  same  cause  to  neighboring  lands,  or  as  to  the  produce  of 
other  neighboring  lands,  not  thus  affected.^ 

§  21.  Where,  in  an  action  for  injury  to  land  by  copper  gas,  an 
expert  testifies  tliat  he  has  obtained  copper  from  the  grass  on 
such  land,  the  defendant  may  show  in  the  same  way  that  copper 
has  been  obtained  from  grasses  not  thus  afi'ected.'^ 

§  22.  With  more  special  reference  to  the  point  of  time;  the 
remoteness  or  nearness  of  time  of  threats  and  declarations,  point- 
ing to  an  act  subsequently  committed,  makes  no  difference  as  to 
their  competency  in  evidence.  All  the  facts,  upon  which  any 
reasonable  presumption  or  inference  can  be  founded  as  to  the 
truth  or  falsity  of  the  issue,  are  admissible  in  evidence.^ 

§  23.  In  an  action  against  a  railroad  corporation,  for  an  injury 
occasioned  by  their  locomotive  engine  to  a  man  delivering  wood 
by  the  side  of  their  track,  the  plaintiff",  after  having  introduced  evi- 
dence tending  to  show  tliat  there  was  at  the  time  of  the  accident 
a  travelled  crossing  at  that  place,  cannot  show  that  such  a  cross- 
ing was  there  previously  to  the  accident,  and  also  at  the  time  of 
the  trial.^  But,  in  an  action  for  breaking  the  plaintiff's  leg,  where 
evidence  of  a  second  breaking,  by  slipping  down  on  the  sidewalk, 
has  been  admitted  without  objection  ;  evidence  of  the  subsequent 
state  of  the  leg  is  admissible,  to  show  its  condition  before  and 
after  the  second  breaking,  so  that  the  jury  may  determine  for  how 
much  injury  the  defendant  is  liable.*^  So  in  an  action  for  a  con- 
tinuing nuisance,  by  obstructing  or  altering  the  flow  of  water; 
evidence  fnay  be  received  of  the  condition  of  the  premises  at  or 
about  the  time  of  the  trial,  not  for  the  purpose  of  recovering 
damages  for  injuries  sustained  after  commencement  of  the  suit, 

1  Hunt  V.  Lowell,  &c.,  8  Allen,   1G9,         *  Keener  v.  State,  18  Geo.  194. 

172.  5  Kobinson  v.  Fitchburg,  &c.,  7  Gray, 

2  Lincoln  v.  Taunton,  &c.,  (Mass.)  Law     92. 

Keg.  Dec.  1865,  p.  125.  6  Wright  v.  New  York,  &c.,  28  Barb. 

»  lb.  80. 


484  EVIDENCE.  [book    IV. 

but  of  furnishing  the  most  precise  and  reliable  information  as  to 
the  nature  and  extent  of  the  injury,  and  thus  enabling  the  jury, 
by  comparison,  to  judge  of  the  amount  of  damages  resulting 
from  the  alleged  nuisance,  prior  to  the  commencement  of  the 
aciion.^     (See  Book  V.,  Ciiap.  III.) 

§  23  a.  Where  land  is  taken  for  a  railroad,  a  petitioner  for 
damages  may  be  asked,  on  cross-examination,  for  what  price  he 
sold  tiie  rest  of  the  lot,  seventeen  years  afterwards.^ 

§  23  h.  In  an  action  for  diverting  water,  evidence  of  the  extent 
of  the  diversion  on  the  morning  of  the  trial  is  admissible  in  evi- 
dence, as  showing  the  quantity  of  the  water  lost,  and  the  extent  of 
the  injury.^  So,  in  an  action  for  the  overflow  of  land,  evidence  is 
admissible  of  the  damage  caused  since  the  suit  was  commenced, 
for  the  purpose  of  showing  the  consequences  of  the  overflow 
under  similar  circumstances  before  suit  brought.* 

§  24.  The  same  point  is  sometimes  connected  with  evidence  of 
common  rejmtation.  Thus,  in  trespass  qu.  clans.,  the  defendant 
pleaded  a  prescriptive  right  of  common,  and  the  plaintiff  replied, 
a  prescription  in  right  of  his  messuage  to  use  the  land  for  tillage 
with  corn  during  harvest,  traversing  the  defendant's  prescrip- 
tion. Many  persons  besides  the  defendant  having  a  right  of  com- 
mon there  ;  held,  evidence  was  admissible,  coming  from  persons 
conversant  with  tiie  neighborhood,  of  reputation  as  to  the  plain- 
tiff's right.^  Lord  Ellenborough  questioned  the  competency  of 
the  evidence,  upon  general  principles,  and  independently  of  the 
established  practice  to  admit  it  with  reference  to  public  rights  ; 
remarking,  that  "  the  right  in  question  may  be  said  in  some  sense 
to  partake  of  the  nature  of  a  public  right,  ...  a  question 
between  the  plaintiff  and  a  multitude  of  persons."  Mr.  Justice 
Bailey  remarks:  ''I  take  it  that  where  the  term  public  right  is 
used  it  does  not  mean  public  in  the  literal  sense,  but  is  synony- 
mous with  general;  that  is,  what  concerns  a  multitude  of  per- 
sons." ^  So  in  a  suit  in  equity,  to  recover  damages  for  a 
nuisance  to  buildings,  arising  from  the  unlawful  erection  and 
maintenance  of  steam-engines  and  furnaces,  as  well  as  for  an 
injunction  to  prevent  their  further  continuance ;  evidence  of  the 

1  Morris,  &c.  v.  Ryerson,  3  Dutch.  457.  ^  Weeks   v.  Sparke,  1  M.  &.   S.  379. 

2  Whitman  v.  Boston,  &c.,  7  Allen,  313.  See  p.  429. 

3  Read  v.  Barker,  1  Vrooni,  378.  «  lb.  686,  690. 

4  Polly  V.  McCall,  37  Ala.  20. 


CH.    IV.]  RES   INTER    ALIOS    ACTA.  485 

general  character  of  the  neighborhood,  of  the  various  kinds  of 
business  carried  on  there,  and  of  the  class  of  tenants  by  whom 
dwelh'ng-houses  in  tliat  vicinity  are  usually  occupied,  is  compe- 
tent, upon  the  question  of  damages.  But  not  that  a  particular 
insurance  company  had  increased  the  rate  of  insurance  on  the 
plaintiff's  houses.^ 

§  25.  We  shall  hereafter  have  occasion  to  consider,  under  the 
title  of  Damages,  what  facts  and  circumstances  may  be  proved 
in  the  various  forms  of  action,  as  increasing  or  diminishing  the 
amount  to  be  recovered.  In  the  present  connection,  we  may 
briefly  notice  the  question  of  value,  as  a  matter  of  evidence  ; 
remarking,  in  general  terms,  that  whatever  is  admissible  in  evi- 
dence  may  affect  the  amount  of  damages  ;  and,  on  tHe  other  hand, 
that  whatever  (and  that  only)  has  a  proper  bearing  upon  the 
damages  may  properly  be  offered  in  evidence.- 

§  25  a.  To  prove  the  value  of  land,  evidence  of  what  a  witness 
had  offered  for  other  land,  on  the  opposite  side  of  the  street,  is 
not  competent.^ 

§  25  h.  An  estimate,  not  on  oath,  of  damages  that  would  be 
sustained  by  a  party  over  whose  land  a  railroad  was  afterwards 
laid  out,  made  by  a  committee  of  a  town,  while  a  petition  of 
the  town  for  a  change  of  the  route  of  the  railroad  was  before 
the  legislature,  and  merely  stating  those  damages  as  the  least  the 
party  would  take,  is  not  admissible  in  evidence  to  a  jury  impan- 
elled to  appraise  damages  caused  by  laying  out  the  railroad  over 
the  land,  although  such  estimate  was  made  at  the  request  of  an 
agent  of  the  railroad  company.^ 

§  26.  In  an  action  for  breaking  and  entering  the  plaintiff's 
close  and  tearing  down  his  unfinished  building,  he  cannot  offer 
evidence  of  what  the  building  would  have  cost  or  rented  for,  if 
finislied  according  to  the  plan.^  So,  in  trespass  for  mesne  profits, 
evidence  is  not  admissible,  of  the  profits  of  a  proprietor  adjoining 
the  defendant,  to  show  how  much  was  made  by  the  defendant.^ 

§  26  a.  Under  a  declaration  for  injury,  by  building  on  the  next 
lot,  and  driving  spikes  into  the  plaintiff's  wall,  it  is  not  compe- 
tent to  show  that  the  market  value  of  the   plaintiff's   house  has 

•  Call  V.  Allen,  1  Allen,  137.  *  Webl.er  ?•.  Eastern,  &c.,  2  Met.  147. 

-  See  Ward  v.  Reynolds,  82  Ala.  384;  »  Bennett  v.  Clenience,  0  Allen,  10. 

Kingsbury  v.  Moses,  45  N.  II.  422.  «  Mitciiell  v.  Mitcliell.  10  Md.  234. 
3  Davis  V.  Charles,  &c.,  11  Cush.  506. 


486  EVIDENCE.  [book    IV. 

been  lessened  by  the  fact  of  the  defendant's  erecting  the  building 
in  question.^ 

§  27.  In  an  action  for  a  personal  injury,  by  which  the  plaintiff 
is  prevented  from  following  his  usual  employment ;  he  may  offer 
in  evidence  the  amount  he  was  thus  earning  or  realizing  from 
fixed  wages,  and  may  himself  testify  what  was  his  net  income 
for  services  for  the  year  preceding  the  injury.- 

§  28.  In  trespass  for  the  taking  and  detention  of  slaves,  the 
expense  of  recovering  them  might  be  proved,  without  proof  of  its 
reasonableness  or  necessity.^ 

§  29.  The  flict,  that  sales  of  patent  rights  have  been  made  in 
one  State,  is  admissible  to  show  the  value  of  the  patent  in  another 
State,  where  the  suit  is  brought.* 

§  30.  A  wilness,  having  testified  as  to  the  value  of  a  patent  for 
a  certain  county,  may  further  testify  that,  although  having  no 
authority  to  sell,  he  had  been  offered  a  like  sum  by  an  unknown 
person.^ 

§  30  a.  The  defendant  assigned  to  the  plaintiff  a  claim  upon 
the  United  States  in  payment  for  goods  sold  in  CaHfornia  just 
before  its  annexation,  but  prevented  the  plaintiff  from  collecting 
such  claim.  In  an  action  for  damages,  held,  the  plaintiff  might 
show  the  first  cost  of  the  goods  in  the  United  States,  the  expenses 
of  transportation  to  California,  the  duties  there,  and  the  usual  and 
proper  profits ;  also  sales  of  like  articles  for  cash  within  three  or 
four  months  before  and  after  the  sale,  and  a  repurchase  of  some 
of  the  goods  for  cash  by  the  plaintiff,  at  advanced  rates,  within 
two  months  afterwards  ;  in  connection  with  other  evidence  of  the 
market  value  at  that  time  and  place.^ 

§  30  h.  Where  the  price  paid  for  one  animal  was  another  animal, 
the  age,  appearance,  and  qualities  of  the  latter,  and  the  price  for 
wdiich  it  sold,  are  competent  evidence  of  the  value  of  the  former ; 
^'  upon  the  almost  axiomatic  principle,  that  things  which  are 
equal  to  the  same  thing,  are  equal  to  one  another." '' 

§  31.  In  an  action  on  the  case  for  injury  to  property,  and 
especially  to  a  well,  by  rendering  the  water  impure,  all  the  cir- 
cumstances may  be  proved  and  considered  ;  and,  to  ascertain 
the  damages,  the  cost  of  furnishing  water  to  the  family,  having 

1  Wilson  V.  Hinsley,  13  Md.  04.  5  Gatling  v.  Newell,  9  Ind.  572. 

2  Grant  v.  Brooklyn,  41  Barb.  381.  <*  Platen  v.  Melius,  7  Gray,  566. 

3  Williams  v.  Newberry,  32  Miss.  256.  7  Carr  v.   Moore,   41   N.'  H.    131  ;  per 
*  Gatling  i-.  Newell,  9"lnd.  672.  Fowler,  J.,  ib.  33. 


CH.    IV.]  RES   INTER   ALIOS    ACTA.  487 

regard  to  quality  and  quantity,  also  tlie  difTerence  in  value  of  the 
property,  owing  to  the  erection  of  gas  and  other  offensive  struct- 
ures in  its  vicinity.^ 

§  32.  Where  A  and  B  had  exchanged  lands ;  in  a  suit  by  A,  for 
false  and  fraudulent  representations  of  B  as  to  the  quality  and 
description  of  his  land,  evidence  as  to  the  value  of  the  land  and 
the  improvements  conveyed  to  B  is  immaterial,  and  properly 
excluded.^ 

§  33.  Where  the  plaintiff  delivered  to  tlic  defendant  gold,  to  be 
made  up  into  jewelry  ;  in  an  action  for  making  and  delivering 
plated  articles,  evidence  of  the  amount  of  gold  it  would  take  to 
make  them  solid  is  irrelevant." 

§  34.  Similar  remarks  to  those  made  on  the  subject  of  value 
are  also  ap[)licable  to  that  of  motive,  intent,  or  malice  ;  which  has 
a  double  connection  with  Evidence  and  Damages.  (See  Book  V., 
Chap.  V. ;  also  p.  428.) 

§  35.  In  an  action  of  trespass,  where  the  general  issue  is 
pleaded,  all  the  acts  and  circumstances  directly  connected  with 
and  attendant  upon  the  transaction  are  competent  for  either  party 
to  prove,  as  tending  to  favor  or  rebut  the  presumption  of  malice, 
but  for  no  other  purpose.^ 

§  36.  In  trespass  quare  clausum,  and  for  tearing  down  the 
plaintiff's  house;  evidence,  that  the  house  was  occupied  by  lewd 
females,  and  that  persons,  a  short  time  before  the  trespass,  in 
visiting  the  house,  passed  over  the  defendant's  land,  and  left  his 
bars  down,  struck  the  defendant,  and  disturbed  a  religious  meet- 
ing at  his  house,  swore  at  him,  <fec.,  is  not  admissible,  under  the 
general  issue,  to  rebut  the  presumption  of  malice,  or  in  answer 
to  a  claim  for  exemplary  damages." 

§  37.  In  an  action  of  trespass,  the  declarations  of  the  defendant 
at  the  time  are  evidence  to  show  the  quo  animo,  and  admissible 
as  part  of  the  res  gestie.^ 

§  38.  In  trespass  quare  clausum,  where  the  malice  of  the  de- 
fendant may  be  the  ground  of  exemplary  damages,  he,  being  a 
competent  witness,  may  testify  what  his  motive  and  purpose 
were.' 

1  Ottawa,  &c.  V.  Graham,  28  Til.  73.  <  Tcrkins  v.  Towle,  43  N.  H.  220. 

2  Likes  V.  Bner,  8  Clarke  (Invva),  3f.8.  ^  jb. 

8  Harris  v.  Bernard,  4   E.  D.  Smith,  *'  Emorv  v.  Collinfrs.  I  liar.  325. 

195.  "^  Norris  v.  Morril,  40  N.  U.  3'Jo. 


488  EVIDENCE.  [book   IV. 

§  38  a.  In  trespass  against  an  overseer  of  the  highway,  for  cut- 
ting down  a  tree  therein,  evidence  of  improper  motives,  and  that 
the  act  was  done  mahciously,  is  admissible.  But  only  the  state 
of  feeling  between  the  parties  at  the  time,  not  the  cause  or  his- 
tory of  the  quarrel.^ 

1  Winter  v.  Peterson,  4  Zabr.  524. 


CH.    v.]  PAROL   EVIDENCE.  489 


CHAPTER  Y. 

PAROL    EVIDENCE. 

1.  General  rule.  6.  As  to  contracts. 

3.  In  case  oi  fraud.  7.    Officer's  return. 

4  a.  As  to  conrvyances.  8.  Luss  of  writings. 

5.  In  case  of  hase.  15.  As  to  application  of  writings. 

§  1.  "  Parol  contemporaneous  evidence  is  inadmissible  to  con- 
tradict or  vary  the  terms  of  a  valid  written  instrument ;  "  ^  though 
it  may  be  read  by  the  light  of  surrounding  circumstances,  to 
understand  the  intent  of  the  parties.^  "  Where  written  instru- 
ments are  appointed,  either  by  the  immediate  authority  of  law, 
or  by  the  compact  of  parties,  to  be  the  permanent  repositories 
and  testimonies  of  truth,  it  is  a  matter  both  of  principle  and  of 
policy  to  exclude  any  inferior  evidence  from  being  used,  either 
as  a  substitute  for  such  instruments,  or  to  contradict  or  alter 
them.  Of  principle,  because  such  instruments  are  in  their  own 
nature  and  origin  entitled  to  a  much  higher  degree  of  credit  than 
that  which  appertains  to  parol  evidence ;  of  policy,  because  it 
would  be  attended  with  great  mischief  and  inconvenience  if  those 
instruments  upon  which  men's  rights  depended  were  liable  to  be 
impeached  and  contradicted  by  loose  collateral  evidence."^  (a) 

§  2.  Parol  evidence  to  prove  the  issuing  of  a  warrant  and  the 
arrest  of  a  person  thereon  is  incompetent,  unless  it  be  shown  that 
neither  the  warrant  nor  a  copy  of  it  can  be  produced.^  So  a 
seizure  and  sale  on  a  distress  warrant,  the  proceedings  on  which 
are  required  to  be  in  writing,  cannot  be  proved  by  parol.^ 

§  3.  Parol  evidence  is  admissible,  of  fraud  in  a  written  agree- 

l  1  Greenl.  Ev.  398,  §  275.     See  Ear-         «  3  Stark.  Ev.  994. 
bold  r.  Kuster,  44  Penn.  3H2.  *  Ilackett  v.  Kintr,  6  Allen,  58. 

'^  Emery  v.  Webster,  42  Maine,  204.  ^  ]\lyers  v.  Smith,  27  Md.  91. 

(n)  Tlie  plaintiff  claimed  title  to  certain  ful  searcb  there  for  it,  —  the  purchaser 
premises  under  a  bill  of  sale.  Held,  he  beinjj  witliin  the  reach  of  the  process  of 
was  bound  to  produce  tliis  instrument,  the  court,  but  not  calleil  as  a  witness, — 
and  evidence  that  it  had  been  left  at  his  was  not  sufficient  to  lay  a  foundation  for 
store,  wlien  he  sold  the  store  and  con-  introducinji  secondary  evidence  of  its  con- 
tents, and  that  he  had  made  an  unsuccess-  tents.     King  v.  Kandiett,  33  Cal.  318. 


490  EVIDENCE.  [book   IV. 

ment.^  Or  to  contradict  the  terms  of  a  note,  where  it  goes  to 
establisli  either  usury  or  illegality  in  the  contract.^  But  not  that 
the  writing,  at  the  time  of  its  execution,  was  agreed  to  be  a  sham, 
to  defeat  creditors,  or  for  other  purposes.^  And,  in  an  action  for 
deceit  in  a  sale,  the  contract,  if  written,  must  be  proved  by  the 
writing  itself,  or  its  absence  accounted  for.^ 

§  4.  In  an  action  for  fraudulent  representations  on  a  sale  at 
auction,  the  declarations  of  the  vendor,  after  the  premises  have 
been  struck  down,  but  before  the  terms  of  the  sale  have  been 
reduced  to  writing,  are  admissible.^  So  where  a  bill  in  chancery 
charges,  in  a  sale  of  land  by  written  contract,  misrepresentation 
and  fraud,  which  are  denied  in  the  answer,  parol  evidence  of  the 
fraud  is  admissible.''  And,  in  general,  where  the  gravamen  of  an 
action  is  fraud  in  inducing  the  plaintifl'  to  enter  into  a  contract, 
the  rule  does  not  apply,  that  anterior  and  accompanying  stipula- 
tions and  representations  are  merged  in  the  contract;  but  they 
may  be  proved  by  parol  evidence.  Thus,  in  case  of  sale  by 
sample  to  one  acting  as  broker  to  the  plaintiff,  the  purchaser,  the 
plaintiff  may  offer  parol  evidence  of  the  statements  of  the  defend- 
ants, the  sellers,  to  such  broker,  previous  to  the  sale,  respecting 
the  quality  of  the  bulk  of  the  article,  as  compared  with  the  sam- 
ple, notwithstanding  a  written  memorandum,  signed  by  the  broker, 
and  containing  nothing  in  reference  to  the  quality.'^ 

§  4  a.  Parol  evidence  is  not  admissible,  to  prove  a  contempora- 
neous understanding  and  agreement  contrary  to  the  terms  of  a 
conveyance.^  Thus  a  defendant  in  ejectment  cannot  prove  that 
a  deed,  professing  to  convey  a  certain  number  of  acres,  was 
intended  to  convey  more ;  ^  nor  introduce  parol  evidence,  to  con- 
trol an  absolute  deed  of  the  demanded  premises  given  by  him.^'^ 
So  the  declarations  of  a  husband,  after  the  date  of  a  deed  by  him- 
self and  wife  of  the  wife's  land,  cannot  be  given  in  evidence 
against  the  grantee,  to  impeach  the  validity  of  the  conveyance, 
or  to  prove  that  it  was  dishonestly  obtained. ^^     So  a  declaration 

1  Lunday  v.    Thomas,    26    Geo.   537 ;  ^  Koop  v.  Handy,  41  Barb.  454. 

Pierce  v.  Wilson,  34  Ala.  596.  8  TruUinger   v.    Webb,    3    Ind.    198  ; 

'^  Newsome  v.  Thinjhen,  30  Miss.  414.  Burns  v.  .Jenkins,  8  Ind.  417  ;  New,  &c.  v. 

3  Conner  v.  Carpenter,  2  Wins.  237.  Fields,  10  Ind.  187 ;  New,  &c.  v.  Slaughter, 

*  Gwynn  v.  Setzer,  3  Jones,  382.     See  lb.  218. 

Baltimore  v.  Brown,  54  Penn.  77  ;  Fisher  9  Doe  v.  Swails,  8  Ind.  829. 

V.  Deibert's  Adm'rs,  54  Penn.  460.  ^^  Lincoln  v.  Parsons,  1  Allen,  388. 

6  Haightr.  Hayt,  19  N.  Y.  (5  Smith)  n  Kirkland   v.  Hepselgefser,  2  Grant, 

404.  84.     See  §  3. 

6  Harrell  v.  HiU,  19  Ark.  102. 


CH.    v.]  PAROL    EVIDENCE.  491 

by  one  executor  is  not  admissible  to  vary  the  date  of  an  executor's 
deed,  in  ejectment  founded  on  the  deed.*  So  a  deed  cannot  be 
contradicted  or  varied  by  parol  evidence,  that  part  of  the  premises 
included  was  intended  to  be  excepted,  for  the  purpose  of  negativ- 
ing any  breach  of  the  covenants  contained  in  it;  the  conclusive 
presumption  being,  that  the  whole  engagement  of  the  parties, 
and  the  extent  and  manner  of  it,  were  reduced  to  writing.'^  So  a 
grantee,  who  has  voluntarily,  and  without  fraud  or  mistake, 
destroyed  the  conveyance,  cannot  resort  to  parol  evidence  of  its 
contents  in  support  of  his  title.'^  But  where,  in  ejectment,  the 
defence  set  up  is  an  outstanding  title  in  another,  extrinsic  evi- 
dence is  admissible  to  show  that  the  description  in  the  deed 
relied  upon,  and  that  in  the  plaintiff's  deed,  cover  the  same 
premises,  unless  repugnant  to  each  otlier."^  So  the  term  "  old  " 
in  a  deed,  when  applied  to  the  channel  of  a  stream  flowing  through 
alluvial  lands,  as  a  boundary,  may  be  explained  by  parol  evidence 
of  the  language  or  acts  of  the  parties,  at  the  time  of,  or  subse- 
quent to,  the  conveyance.^  So  the  identical  monument  referred 
to  in  a  deed.^  Facts,  tending  to  show  that  a  "  stake  "  is  such  a 
monument,  are  proper  for  the  consideration  of  the  jury,  but  raise 
no  binding  presumption  of  law.^  More  especially  if  the  descrip- 
tion in  a  deed  be  doubtful,  or  lines  or  monuments  lost  or  destroyed, 
parol  evidence  of  the  practical  construction  given  by  parties  is 
admissible.^  Or  to  remove  uncertainty,  arising  in  the  application 
to  the  subject-matter  of  definite  terms  of  the  description  ;^  as,  to 
show  the  position  of  monuments  erected  by  commissioners,  whose 
return  fixed  the  disputed  boundary  with  a  latent  uncertaint}'.^*^ 
Or  to  explain  the  certificate  of  a  surveyor,  containing  a  general 
description  of  land  by  bounds,  in  order  to  identify  the  land.^* 

§  5.  The  defendant,  C,  having  a  /ease  of  a  store,  underlet  to  A 
the  whole  of  the  first  floor,  excepting  a  portion  thereof  which 
was  tlien  partitioned  off,  and  which  consisted  of  the  stairway,  with 
a  hatchway  in  front,  leading  to  the  upper  stories  of  the  building. 
There  were  two  doors  in  the  front,  the  one  opening  opposite  the 
stairway,  and   the  other  into  the  lower  room,  into  which  there 

1  Pratt  V.  Phillips,  1  Snccd.  54?..  6  AflTcrty  v.  Connover,  7  Ohio  (N.  S.), 

-'  Nuitiiiir  ,■.  Hcrhert,  85  X.  H.  120.  99. 

^  Parker  r.   Kane,  4  Wis.  1  ;  Speer  v.  ^  Robinson  v.  White,  42  Maine,  209. 

Speer,  7  Ind.  178.  8  Fletcher  >-.  Plielps,  2  Wnis.  258. 

<  Schuitz  V.  Lindell,  80  Mis.  310.  ^  Patcii  v.  Keeler,  ib.  332. 

»  Emery  v.  Webster,  42  Maine,  204.  ii»  lb. 

1'   Spears  v.  Burton,  31  Miss.  547. 


492  EVIDENCE.  [book  IV. 

■was  also  access  tlirongh  a  door  in  the  partition.  A,  with  the 
consent  of  C,  removed  the  partition,  agreeing  to  restore  it  when 
requested.  Afterwards  A  sold  out  to  S,  with  whom  C  agreed  in 
writing,  that  "  the  present  lessee  and  occupant  of  the  first  floor 
of  the  house  may  continue  to  use  and  occupy  the  said  premises 
as  long  as  I  hold  the  lease  thereof."  In  an  action  by  S  against  C, 
for  putting  up  the  partition,  held,  parol  evidence  was  competent 
that  S  took  the  agreement  from  C  with  knowledge  of  the  rights 
and  obligations  of  A.^ 

§  6.  The  same  principles  are  applied  to  written  contracts. 
Thus,  if  a  bill  of  lading  does  not  require  the  master  to  take  a  cer- 
tain route,  such  obligation  cannot  be  established  by  proof  of  any 
preliminary  conversation.^  But,  in  an  action  for  procuring  the 
arrest  and  imprisonment  of  the  plaintiff,  on  an  execution  against 
him  and  a  former  partner,  in  favor  of  A,  but  assigned  to  the 
defendant,  in  which  there  is  evidence  that  the  plaintiff  had  sold 
out  his  interest  in  the  firm  to  B,  and  that,  as  part  of  the  consider- 
ation, B  agreed  to  indemnify  him  against  all  the  outstanding  debts, 
and  that  the  new  firm  had  accordingly  paid  the  execution  ;  it  is 
competent  to  prove  by  parol,  that  the  defendant  authorized  B  to 
make  the  contracts  of  purchase  and  indemnity,  as  his  agent, 
before  the  assignment  and  arrest,  for  the  purpose  of  showing 
knowledge  on  his  part  that  the  execution  was  paid.  ''  This  was 
not  the  purpose "  (to  vary  the  contract)  "  for  which  it  was 
offered,  nor  could  it,  if  received,  have  had  any  such  effect.  It 
was  offered  because  the  fact  .  .  .  would  have  some  tendency  to 
show  that  the  defendant  must  have  known  of  the  payment  .  .  . 
if  it  had  been  made."^  And  a  bill  of  lading  or  railroad  receipt, 
stating  that  the  goods  were  received  in  apparent  good  order, 
does  not  exclude  parol  proof  of  their  real  condition.'^ 

§  7.  Upon  petition  to  vacate  the  levy  of  an  execution  for  want 
of  notice  to  the  debtor  to  choose  an  appraiser,  the  fact  may  be 
shown  by  parol,  though  the  officer  states  in  his  return  of  the  levy 
that  notice  was  given.^ 

§  8.  Questions  as  to  parol  evidence  arise  from  the  alleged  loss 
of  the  written  instrument. 

§  9.  The  issuing  of  a  warrant,  and  arrest  thereupon,  cannot  be 

1  Steffens  v.  Collins,  6  Bosw.223.  *  Blade  v.  Chicago,  &c.,  10  Wis.  4. 

2  White  V.  Van  Kirk,  2o  Barb.  16.  ^  Briggs  v.  Green,  33  Verm.  565. 

3  Paget   V.    Cook,   1   Allen,   522 ;  per 
Merrick,  J.,  ib.  525. 


CH.    v.]  PAROL   EVIDENCE.  493 

proved  by  parol  evidence,  without  proving  that  neither  the 
warrant  nor  a  copy  can  be  produced.  So  lield,  in  a  late  case 
for  conversion,  where  the  warrant  in  question  was  not  returned 
into  court,  and  not  produced,  though  the  plaintiff  had  notified  the 
defendant  to  produce  it.  Tlie  defendant  claimed  the  property  for 
whicli  the  suit  was  brought  under  a  release  or  bill  of  sale  from 
the  plaintiff;  to  which  the  plaintiff  replied  that  the  release  was 
obtained  from  him  througii  duress  and  fraud.  The  plaintiff  tes- 
tified, that  he  was  arrested  upon  a  charge  of  larceny  from  the 
defendant,  upon  a  warrant  which  was  never  returned. ^ 

§  10.  Action  to  recover  the  amount  of  a  note  alleged  to  have 
been  left  with  the  defendant  for  collection.  Tiie  defendant 
offered  to  prove,  that  the  plaintiff  had  written  him  instructions 
not  to  attempt  to  collect  the  note  of  the  maker,  but  to  exchange 
it  for  the  note  of  another  person  named,  if  he  could,  which  he  had 
done.  This  proof  he  offered  to  make,  by  proving  the  contents  of 
the  letters  of  instruction,  having  first  clearly  shown  that  he  had 
deposited  the  letters  with  another,  to  be  kept  during  his  absence 
from  home,  and  that,  while  so  on  deposit,  they  had  been  acciden- 
tally destroyed.  The  proof  was  objected  to,  not  as  being  irrele- 
vant, but  for  want  of  sufficient  proof  of  loss.     Held  admissible.^ 

§  11.  In  an  action  of  trespass  for  levying  a  tax,  to  establish  the 
assessment,  the  defendants  offered  to  prove  the  loss  and  contents 
of  the  district  records.  The  witnesses,  in  speaking  of  the  records, 
described  them  as  being  kept  on  half  sheets  and  quarto  sheets  of 
paper,  not  bound  in  book  form.  To  all  this  testimony  the  plain- 
tiff objected,  for  the  reason  that  the  evidence  did  not  show  such 
a  record  as  a  school  district  was  required  to  keep,  and  that  the 
existence  and  contents  of  a  public  record  could  not  be  proved  by 
parol.  Held,  that,  after  proof  of  the  loss  of  a  record,  its  contents 
may  be  proved,  like  any  other  document,  by  secondary  evidence ; 
that,  if  a  copy  can  be  produced,  its  production  should  be  required  ; 
but,  if  the  existence  of  better  evidence  is  not  disclosed,  then  the 
contents  may  be  proved  by  parol.^  (a) 

1  Ilackett  V.  Kinir,  6  Allen,  68.  3  Higgins  v.  Reed,  8  Clarke   (Iowa), 

'-'  Littler  v.  Franklin,  9  Ind.  "ilG.  298. 

(a)  Thedcfeiiilants  oflTered  in  evidi-nce  a  citizens   of  tlie    district,    cdntaininfj    the 

paper,  in  tlie  liand\vritin;4  of  tlie  secretary  names  of  tlic   plaintitl's  ami  others,  with 

of  the  district  (hut  wiietlicr  in  that  of  one  memorandums  as  to  wlio  liad  j)aid,  which 

of  tiie  defendants  did  not  ajjpear),  siiowing  paper  was  tlie  onlj' written  evidence  re- 

the  amount  of  tax  due  from  the  several  maining  of  the  tax-list  of  Iboo.     Held,  if 


494  EVIDENCE.  [book   IV. 

§  12.  In  Georgia,  it  being  the  duty  of  the  sheriff,  after  levying 
under  a  tax  execution,  to  return  it  to  the  office  of  the  solicitor- 
general  ;  it  is  to  be  presumed  that  he  did  so,  and  inquiry  for  it 
must  be  made  at  such  office,  before  secondary  evidence  of  its  con- 
tents can  be  admissible.^ 

§  13.  In  an  action  against  selectmen  for  refusing  to  receive  a 
vote,  parol  evidence  that  the  plaintiff's  name  was  on  the  list  is 
inadmissible,  without  notice  to  produce  the  list,  or  a  subpcena 
duces  teciimP' 

§  14.  In  an  action  on  the  case,  by  a  town  (in  Connecticut),  for 
illegally  transporting  A,  a  pauper,  into  the  town  ;  where  the  ques- 
tion was,  whether  A  had  formerly  gained  a  settlement  in  Vermont, 
under  the  statute  which  provides,  that  every  person  who  shall 
inhabit  in  any  town  or  place  within  said  State,  and  have  been 
charged  with  and  paid  his  share  of  the  public  rates  or  taxes  for 
two  years,  shall  acquire  a  settlement ;  and  it  appeared  that  such 
taxes  were  assessed  and  collected  in  much  the  same  manner  as 
in  Connecticut,  but  there  was  no  record  evidence  before  the 
court,  that  a  tax  claimed  to  have  been  paid  by  A  had  been  legally 
assessed,  and  no  foundation  had  been  laid  for  dispensing  with 
such  evidence  :  held,  secondary  evidence  was  not  admissible.^ 

§  15.  The  question  of  parol  evidence  often  arises  in  determin- 
ing the  application  of  a  writing.  Thus,  in  case  of  a  former  judg- 
ment, the  precise  object  and  effect  of  which  become  material,  as 
bearing  upon  the  pending  action. 

§  16.  Parol  evidence  is  admissible,  that  an  obstruction,  for 
which  damages  were  recovered  in  a  former  action  against  another 
defendant,  is  the  same  for  which  damages  were  claimed  in  a  sub- 
sequent suit ;  but  not  that  there  was  a  claim  for  false  imprison- 
ment in  the  former  suit,  and  that,  on  appeal  from  a  justice,  in  the 
Superior  Court,  upon  a  suggestion  that  the  false  imprisonment 
was  the  plaintiff's  only  cause  of  action,  he  thereupon,  desiring  to 
amend,  was  told  by  the  court  that  it  was  unnecessary,  that  the 
trial  might  go  on  as  if  the  amendment  were  made,  and  that  the 
amendment  was  disallowed ;    and   therefore    it    cannot   thus   be 

1  Davenport  v.  Harris,  27  Geo.  68.  ^  Marlborough  v.  Sisson,  23  Conn.  44. 

2  Harris  v.  Whitcomb,  4  Gray,  433. 

the  paper  was  a  copy  of  tlie  assessment-    provided  for  in  that  section,  it  was  admis- 
roU  provided  for  in  §  1130  of  the  Iowa     sible.     8  Clarke,  298. 
Code,  or  one  of  the  lists  posted  up,  as 


CH.    v.]  PAROL   EVIDENCE.  495 

shown  that  the  judgment  of  the  Superior  Court,  affirming  that 
of  the  justice,  sliould  not  be  a  bar  to  the  present  action  for  tlie 
obstruction,  against  another  defendant.^ 

§  17.  In  case  of  sale  of  a  certain  amount  of  standing  timber, 
by  a  contract  partly  reduced  to  writing;  parol  evidence  is  admis- 
sible to  show,  what  did  not  appear  by  the  writing,  from  what  tract 
the  timber  was  to  be  cut.^ 

1  Federal,  &c.  v.  Mariner,  15  Md.  224.         -  Pinney     v.    Thompson,     3     Clarke 

(Iowa),  74. 


496  EVIDENCE.  [book    IV. 


CHAPTER    VI. 

MISCELLANEOUS     POINTS     OF    EVIDENCE.  —  VARIANCE ;    TESTIMONY    OF 

PARTIES. 

1.  Varinnce.  9.  Testimony  of  parties. 

§  1.  It  has  already  been  explained,  under  the  head  oi  Pleading, 
that  the  facts  proved  must  conform  to  the  facts  alleged.  (See  p. 
242.)  Otherwise  there  is  a  variance  which  is  fatal  to  the  action 
or  defence.  A  few  leading  cases  upon  this  subject  are  here  sub- 
joined. 

§  2.  In  trespass,  the  locus  in  quo  must  be  proved  to  be  within 
the  hundred  laid.^ 

§  3.  Voluntary  waste  cannot  be  proved,  upon  the  issue  of  per- 
mitting the  premises  to  be  out  of  repair.^ 

§  4.  An  action  for  malicious  prosecution  before  Baron  Water- 
park,  of  Waterfook,  is  not  sustained  by  proof  of  such  prosecution 
before  Baron  Waterpark,  of  Waterparhfi  So,  in  trespass  for 
breaking  and  entering,  the  defendant  pleaded  a  justification 
under  a  search-warrant  granted  by  a  justice  of  the  county  of 
Stafford^  diXiA  gave  in  evidence  a  search-warrant  granted  by  a  jus- 
tice of  the  borough  of  Wolverhampton,  acting  as  such,  but  who 
was  also  a  justice  of  the  county  of  Staiford.  Held,  the  evidence 
did  not  support  the  plea."^ 

§  5.  An  immaterial  averment  need  not  be  proved.  Thus  an 
action  for  removing  earth  from  the  defendant's  land,  thereby 
injuring  the  foundation  of  the  plaintiff's  house,  does  not  de. 
pend  on  intention,  which,  therefore,  though  alleged,  need  not  be 
proved.^ 

§  6.  Whether  an  allegation  is  mere  surplusage,  not  requiring 
to  be  proved,  is  often  a  point  of  much  nicety. 

§  7.  An  action  for  deceit  in  a  sale  against  two  is  not  sustained 

1  Emory  v.  Collings,  1  Har.  325.  •«  Webb  v.  Ross,  4  Hurl.  &  Nor.  111. 

2  Edire  V.  Pemberton,  12  M.  &  W.  187.  ^  Panton  v.  Holland,  17  John.  92;  ace. 

3  AValters  v.  Mace,  2  B.  &  Aid.  756.        Twiss  v.  Baldwin,  9  Conn.  291. 


CH.    VI.]  TESTIMONY    OF   PARTIES.  497 

by  proof  of  a  sale  b}'  one  of  tbem.^  So  in  trespass  for  breaking 
and  entering  a  several  fishery,  if  the  replication  j)iescribe  lor  a 
sole  right  of  fishing  in  four  places,  upon  which  issue  is  taken, 
proof  in  only  three  places  is  a  fatal  variance.  So  a  plea  in  tres- 
pass, justifying  under  a  prescriptive  right  of  common  on  five 
hundred  acres,  is  not  sustained  by  evidence,  showing  that  the 
ancestor  of  the  defendant  had  released  five  of  them.  So,  in 
replevin  of  cattle,  and  avowry  of  taking  damage  feasant,  a  plea 
by  the  |)laintifi"  of  a  prescriptive  right  of  common  for  all  the 
cattle  is  not  sustained  by  proof  of  a  right  for  a  part.^  So  an 
allegation,  in  an  action  by  landlord  against  tenant  for  negligently 
keeping  his  fire,  of  a  demise  for  seven  years,  is  not  sustained  by 
proof  of  a  lease  at  will ;  though  an  allegation  of  a  tenancy,  gen- 
erality, would  liave  been  sufficient.^ 

§  8.  But  in  trespass,  for  driving  against  the  cart  of  the  plain- 
tiff, an  allegation  that  he  was  in  the  cart  need  not  be  proved.* 
So,  in  an  action  for  an  injury  to  a  reversionary  interest  in  land, 
an  allegation  that  the  close  "continually  from  thence  hitherto 
hath  been,  and  still  is,"  in  the  possession  of  A.  B.,  is  surplusage, 
and  need  not  be  proved.^  So,  in  an  action  for  disturbance  of  a 
right  of  common  by  opening  stone  quarries,  the  declaration 
alleged  a  common  by  reason  of  a  messuage  and  land,  in  posses- 
sion of  the  plaintiff".  The  general  issue  was  pleaded,  and  a  com- 
mon proved  by  reason  of  the  land  only.  Held,  the  proof  was 
not  of  a  different  allegation,  but  of  the  same  allegation  in  part; 
and  the  declaration  was  sustained,  and  damages  might  be  given 
accordingly.^  So  if  a  declaration  discloses  a  state  of  facts,  upon 
which  an  action  is  maintainable  without  either  malice  or  fraud, 
the  plaintiff  is  not  bound  to  prove  either,  although  both  are 
alleged,  and  may  recover  though  both  fraud  and  malice  are  dis- 
proved." 

§  9  "The  general  rule  of  the  common  law  is,  that  a  party  to 
the  record  in  a  civil  suit  cannothe  a  ivUness  either  for  himself,  or 
a  co-suitor."  *' 

§  10.  Exceptions   to  this   rule,  however,  are   adopted   in  some 

>  Weall  V.  Kinp,  12  E.  452;  Lopes  v.  ^  Vowles  v.  Miller,  3  Taiin.  137. 

De  Tastet,  1  H.  &  B.  538.  6  liifkets  v.   Sal.rov,   2  B.  &  A.   360. 

2  1  Greenl.  Ev.  144,  §  71  ;  Bull.  N.  P.  See  Busliwood  ;•.  I'oiKi,  Cro.  Eliz.  722. 
299.  ^    Swiiilen  r.   Clielmsford,   5  II.  &  N. 

3  Cudlip  V.  Riindle,  Carth.  202.  890. 

*  Howard  v.  Peete,  2  Chit.  K.  315.  8  i  Qreenl.  Ev.  475,  §  329. 

32 


498  EVIDENCE.  [book   IV. 

cases ;  more  especially  in  courts  proceeding  according  to  the 
Roman  law  ;  "  first,  where  it  has  been  already  proved  that  the 
party  against  whom  (such  evidence)  has  been  offered  has  been 
guilty  of  some  fraud,  or  other  tortious  and  unwarrantable  act 
of  intermeddling  with  the  complainant's  goods,  and  no  other  evi- 
dence can  be  had  of  the  amount  of  damages  ;  and,  secondly, 
where,  on  general  grounds  of  public  policy,  it  is  deemed  essential 
to  the  purposes  of  justice."  ^  In  reference  to  cases  of  the  latter 
description  it  is  remarked  :  '^  This  rule  is  repudiated  in  some  of  the 
States,  and  it  can  only  be  defended  on  the  alleged  necessity  of 
the  case.  We  have  always  endeavored  to  restrain  the  rule  within 
the  narrowest  possible  limits,  and  to  caution  juries  when  they 
receive  such  testimony."^ 

§  11.  In  an  action  against  a  railroad  company,  for  the  value  of 
a  trunk  and  its  contents  lost  on  the  railroad,  the  party  may  prove 
by  himself  or  his  wife  the  contents,  but  not  their  value,^  The 
jurors,  when  the  property  is  described,  may  have  a  proper  meas- 
ure of  damages  in  their  knowledge  of  values.* 

§  12.  This  rule  has  been  sometimes  affirmed  by  statute. 
§  13.  The  provision  of  Mass.  St.  1851,  c.  47,  §  5,  that,  in  any 
action  "  brought  by  a  passenger  against  any  railroad  corporation, 
steamboat  proprietor,  or  other  common  carrier,"  the  plaintiff, 
after  proof  of  the  bailment  of  his  trunk  to  the  defendants,  and 
of  its  loss  "  by  the  fault  of  such  carrier,  or  of  the  agents  of  such 
carrier,"  shall  be  allowed  to  put  in  evidence  a  descriptive  list  of 
its  contents,  sworn  to  by  himself;  applies  to  the  case  of  the  loss 
of  a  trunk  left  by  the  passenger  with  the  baggage-master  of  a 
railroad  corporation,  after  arriving  at  his  place  of  destination. 
The  court  remark  :  "  The  statute  makes  no  distinction,  if  there 
be  one,  between  the  larger  liability  of  carriers  whilst  the  baggage 
is  in  transitu  .  .  .  and  that  more  limited  duty  which  devolves  on 
them  as  bailees  for  hire  alter  it  is  received  at  the  depot.  .  .  . 
Whatever  may  be  the  nature  and  extent  of  the  duties  of  carriers, 
whether  they  be  liable  for  all  losses,  or  only  for  such  as  proceed 
from  negligence  and  carelessness,  ...  or  from  failure  in  the 
performance  of  all  duties  incumbent  on  all  bailees  for  hire,  the 

1  1   Greenl.  Ev.  492,  §  348.  *  Illinois,  &c.  v.  Copeland,  ib.  332.    See 

^  Per  Breese,  J.,  24  III.  336.  Stadhecker  u.  Combs,  9  Rich.  193. 

3  Illinois,  &o.  V.  Taylor,  24  III.  323. 


CH.  VI.]  TESTIMONY    OF    PARTIES.  499 

relation  of  passenger  and  carrier,  in  regard  to  baggage,  continues 
until  the  carriers  have  performed  their  whole  duty."  ^ 

§  13  a.  In  tlie  United  States,  by  express  statute,  the  common 
law  rule  has  been  still  further  relaxed,  and  parties  are  very 
generally  allowed  to  testify,  in  most  cases,  in  their  own  favor. 
Some  questions  have  arisen  in  the  application  of  these  statutory- 
provisions. 

§  14.  In  an  action  against  selectmen  for  refusing  to  put  a  name 
upon  the  voting-list  and  rejecting  a  vote,  the  plaintiff  may  prove 
his  own  statements  concerning  his  residence,  made  to  the  defend- 
ants under  oath,  for  the  purpose  of  furnishing  evidence  of  bia 
qualifications.  So  he  may  testify  to  his  own  intention  in  pre- 
viously leaving  the  town  for  a  prolonged  absence.^  So  the  plain, 
tiff,  in  an  action  of  tort  in  the  nature  of  trespass  qu.  claus.,  may 
testify  how  long  his  use  and  occupation  of  the  premises  have 
continued.^  So,  in  an  action  for  false  imprisonment,  the  plain- 
tiff, who  was  arrested  on  a  charge  of  stealing  from  the  defend- 
ant's house,  may  testify  as  to  the  statement  made  to  the  policeman 
by  the  defendant's  sister,  who  was  the  owner  of  the  stolen  prop- 
erty, that  the  defendant  ordered  the  arrest  to  be  made.*  So  in 
an  action  against  an  officer,  for  the  conversion  of  property, 
attached  by  him  on  a  writ  against  one  under  whom  the  plaintiff 
claims  title  by  a  prior  purchase :  the  plaintiff,  while  testifying 
in  his  own  behalf,  may  be  asked  by  his  counsel  if  he  took  pos- 
session of  the  property  ;  and  a  notice  given  by  him  to  the  defend- 
ant, in  which  he  claimed  ownership  thereof,  and  demanded  its 
return,  is  also  admissible.^ 

§  15.  It  is  no  ground  for  a  new  trial,  that,  the  plaintiff  having 
been  asked,  while  under  cross-examination,  whether  he  was  the 
author  of  a  pamphlet,  which  contained  expressions  of  opinion  on 
religious  subjects  altogether  at  variance  with  those  generally 
received  among  Christians,  and  having  declined  to  answer,  on 
the  ground  that  his  answer  in  the  affirmative  might  subject  him 
to  a  criminal  prosecution;  the  counsel  for  the  defendant  was  per- 
mitted for  a  considerable  time  (obviously  with  a  view  to  preju- 
dice the  plaintiff  with  the  jury)  to  read  various  passages  of  a 
similar  tendency  from  other  printed  documents,  each  time  repeat- 

1  Harlow   v.  Fitchburp,    &c.,  8    Gray,  *  Harris    v.  Dignum,   5  Iliirl.  &  Nor. 

237;  per  Sliaw,  C.  .1.  ib.  240.  943. 

^  Lombanl  v.  Oliver,  7  Allen,  155.  5  Rand  v.  Freeman,  1  Allen,  517. 

*  Bennett  v.  Clemence,  6  Allen,  10. 


500  EVIDENCE.  [book   IV. 

ing  the  inquiry,  whether  the  plaintiff  was  the  author,  or  whether 
the  passage  read  expressed  his  notions  on  the  subject :  the  jury 
being  entitled  to  have  before  them  all  the  facts  and  circum- 
stances, from  which  they  might  be  enabled  to  judge  of  the  degree 
of  credit  due  to  the  party  as  a  witness.^ 

§  16.  After  the  defendant,  in  an  action  for  obstructing  the 
highway  with  building  materials,  has  sworn  positively  that  he 
received  the  materials  in  person,  and  that  they  were  put  in  the 
particular  place  according  to  his  direction ;  he  cannot  offer  evi- 
dence that  under  the  contract  of  purchase  they  were  to  have 
been  delivered  in  another  place.^ 

§  17.  A  statute  authorizing  the  testimony  of  parties  was  by  a 
liberal  construction  held  applicable  in  the  case  of  corporations, 
though  not  expressly  mentioned.  The  court  remark :  "  It  may 
well  be  that  the  present  case  did  not  occur  to  the  legislature 
when  the  statute  was  enacted  ;  but  the  design  was  to  admit,  as 
a  witness,  a  party  to  an  action,  whenever  the  adverse  party  or 
person  in  interest  could  also  be  a  witness.  A  corporation  could 
never  be  a  witness,  but  a  corporation  is  composed  of  a  person  or 
persons,  who  are  natural  persons  and  are  interested  in  the  corpo- 
ration, and  they  can  be  witnesses."^ 

1  Bradlaugh    v.    Edwards,    11    C.  B.  2  Clark  v.  Kirwan,  4  E.  D.  Smith,  21. 

(N.  S.)  377.  »  Per  Marvin,  J.,  28  Barb.  84. 


CH.    VII.]  FRAUD    AS   A    GROUND    OF    ACTION   OR   DEFENCE.  501 


CHAPTER   YII. 

TORT  AND  CONTRACT. FRAUD  AS  A  GROUND  OF  ACTION  OR  DEFENCE. 

§  1.  In  an  action  on  the  case  for  falsely  recommending  a  person 
as  fit  to  be  trusted,  the  knowledge  of  his  insolvency,  as  well  as 
the  fraudulent  intent,  must  be  proved. ^ 

§  2.  In  an  action  for  false  representation  as  to  the  value  of  a 
business,  the  question  will  not  be  merely  whether  it  was  ever 
made,  but  whether  the  defendant  kept  it  up  ;  and  whether,  even 
if  he  did,  the  plaintiff  was  thereby  induced  to  complete  the  pur- 
chase.^ 

§  3.  In  cross-actions  between  the  vendor  and  vendee  of  a  ship, 
the  question  in  both  being  fraud  in  obtaining  a  classification  as 
A  1,  which  had  been  obtained  by  trickery  on  the  part  of  an  agent 
of  the  vendor;  the  jury  must,  to  find  against  the  vendor,  believe 
him  to  have  been  a  party  to  this  fraud :  and  letters  from  the 
agent  to  him  are  admissible  to  show  his  bona  fides. ^ 

§  3  a.  A  bill  of  lading  represented  too  many  goods  to  have  been 
shipped.  This  arose  from  the  mistake  of  the  mate,  which,  there 
was  evidence  to  show,  was  caused  by  the  fraud  of  the  person  who 
put  the  goods  on  board,  who  was  either  agent  of  the  shipper  or 
of  his  vendor.  Held,  there  was  evidence  for  the  jury,  that  the 
misrepresentation  was  caused  "  wholly  by  the  fraud  of  the  shipper 
or  of  the  holder,  or  some  person  under  whom  the  holder  claimed," 
within  the  meaning  of  the  18  &  19  Vict.  c.  Ill,  §  3.* 

§  4.  In  an  action  for  falsely  representing  that  a  good  living 
might  be  got  at  a  certain  public  house,  evidence  is  admissible, 
that,  a  year  or  two  before  the  plaintiff  took  it,  some  one  else 

1  Fooks  t'.  Waples,  1  Har.  131.  *  Valieri  v.  Boyland,  Law  Rep.  1  C.  P. 

2  Incle.lon  v.  Watson,  '1  F  &  F.  841.         382. 
!*  Tindall  v.  Baskett  —  Baskctt  v.  Tin- 

dall,  ib.  G44. 


502  EVIDENCE.  [book   IV. 

found  it  impossible  to  get  a  living ;  the  character  of  the  house 
not  having  since  changed.^ 

§  5.  In  an  action  for  a  false  representation  that  a  third  party 
to  the  best  of  his  knowledge  was  responsible,  the  defendant  may 
be  asked  in  cliicf,  whether  at  the  time  of  the  representation  he 
believed  the  debtor  to  be  in  good  credit ;  and  other  persons 
residing  in  the  neighborhood  may  be  asked  a  similar  ques- 
tion.^ 

§  6.  Parol  evidence  is  admissible  of  false  representations  as  to 
what  passed  by  a  lease.  Thus,  in  case  of  a  lease  of  a  ferry-ship, 
using  the  words,  '*  or  so  much  thereof  as  belongs  to  the  "  lessor; 
evidence  is  competent,  of  representations  that  he  owned  nearly 
the  whole  ship.^ 

§  7.  Upon  a  question  of  fraudulent  conveyance,  the  reputation 
of  the  grantee,  as  to  means  or  property,  in  the  town  or  neighbor- 
hood where  he  resided,  is  competent  evidence  upon  the  point  of 
hona  fides  or  mala  fides  J^ 

§  8.  *'  Generally,  to  establish  an  allegation  of  fraud,  and  perhaps 
to  repel  it,  large  latitude  is  allowed  to  the  admission  of  evidence, 
but  the  evidence  must  have  some  bearing  upon  the  matter  in 
controversy."^  Thus,  in  an  action  for  falsely  representing  a 
person  as  entitled  to  credit,  evidence  is  not  competent  for  the 
defendant  of  declarations  of  a  different  character  made  by  him 
to  other  persons  at  about  the  same  time.  It  tends  in  no  degree 
to  disprove  the  specific  fraud  charged  in  the  declaration,  to  excuse 
the  defendant,  or  lessen  his  responsibility  for  damages.*^ 

§  9.  In  an  action  for  fraudulent  conspiracy  in  the  transfer  of 
property  against  A  and  B,  testimony  is  not  admissible,  that  before 
the  alleged  fraudulent  transfer  A  had  endeavored  to  sell  his 
property ;  having  no  tendency  to  prove  the  honesty  of  the 
arrangement  with  B.'^ 

§  10.  In  an  action  to  set  aside  a  conveyance  as  fraudulent 
against  creditors,  evidence  is  admissible  to  show  what  other  prop- 
erty the  grantor  had  at  or  before  that  time,  and  its  value,  and 
that  he  had  conveyed  it  to  different  persons  without  considera- 
tion and  with  fraudulent  intent.     First,  for  the  purpose  of  show- 

1  Penn  v.  Steadnian,  2  F.  &  F.  546.  ^  -pev  Strong,  J.,  Graham  d.  Hollinger, 

'^  Sheen  v.   Bumpstead,  8  Jur.  (N.  S.)  46  Penn.  56.     See  p.  475. 
702  ;  10  W.  R.  740,  Exch.  6  lb.  55. 

3  Sharp  V.  Mayor,  &c.,  40  Barb.  2-56.  7  Tarns  v.  Lewis,  42  Penn.  402. 

4  Amsden  v.  Manchester,  ib.  158.    See 
p.  429. 


CH.    VII.]  FRAUD    AS    A   GROUND    OP    ACTION    OR    DEFENCE.  503 

ing  his  situation  at  the  time  in  question,  and  what  he  had  done 
with  his  previous  property.  Secondly,  to  prove  the  fraudulent 
intent  alleged  in  tiie  complaint.^ 

§  11.  In  case  of  a  sale  alleged  to  have  been  made  for  the  pur- 
pose of  defrauding  creditors,  the  fraud  of  the  vendor  niay  be 
proved  by  statements  and  admissions,  made  by  hiui  before  the 
sale,  in  the  absence  and  without  the  knowledge  of  the  vendee.' 
But  not  if  they  were  subsequent  to  the  sale.^ 

§  11  a.  Mortgages  given  by  a  father,  upon  premises  conveyed 
previously  by  him  for  a  valuable  consideration  to  his  sons,  are 
not  admissible  to  prove  his  ownership,  in  the  absence  of  other 
evidence  showing  collusion  with  the  grantees.* 

§  11  6.  The  declarations  of  an  alleged  fraudulent  vendor,  not 
in  possession,  are  not  admissible  to  impeach  the  sale.^ 

§  11  c.  In  an  action  to  set  aside  a  conveyance  of  land,  letters 
written  by  a  purchaser  from  the  original  grantee,  tending  to 
show  knowledge  on  the  writer's  part  of  the  circumstances  of  the 
transaction,  and  also  his  bad  faith,  are  admissible  in  behalf  of  the 
plaintiff.^ 

§  11  c?.  Evidence  of  the  acts  of  a  debtor,  in  securing  the  trans- 
fer of  funds  in  a  bank  to  himself  and  from  him  to  the  defendant, 
and  of  his  written  declarations  accompanying  the  acts,  is  admis- 
sible to  show  the  fraudulent  intent  of  the  debtor,  in  an  action 
under  (Me.)  Rev.  Sts.  c.  113,  §  47,  by  a  creditor,  for  aiding  the 
debtor  in  the  fraudulent  transfer  of  his  property." 

§  11  e.  A  deed  executed  by  a  debtor  to  his  mother,  for  the  con- 
sideration therein  named  of  five  dollars,  was  assailed,  on  the 
ground  of  fraud  upon  his  creditors.  Held,  parol  testimony  might 
be  introduced,  of  the  actual  amount  received  by  the  grantor 
from  the  grantee,  in  advances  of  money  which  he  had  agreed  to 
secure  by  deed,  and  that  to  secure  the  same  he  had  executed  the 
deed  in  pursuance  of  the  agreement.  Such  testimony  would  not 
change  the  legal  chsimcter  primd  facie  impressed  by  law  on  the 
deed.^ 

§  11/.  Upon  the  question  of  title  between  a  plaintiff  and  a 
claimant  of  property  attached,  if  the  latter  introduced  the  defend- 

1  Am?(len  v.  Mancliester,  40  Barb.  158.  •>  Tuple}-  v.  Tapley,  10  Minn.  -148. 

-  White  V.  Cliadbourne,  41  Maine,  14y.  "^  Skowhegan  Bank  i:  Cutler,  62  Maine, 

3  Dennison  r.  Benncr,  ib.  332.  609. 

*  Preston  v.  Jones,  50  I'enn.  54.  8  Cunningham  v.  Dwyer,  23  Md.  219. 

^  Shaw  V.  Robertson,  12  Minn.  445. 


504  EVIDENCE.  [book   IV. 

ant,  to  prove  that  he  had  failed  ten  years  before,  and  since  had 
had  no  property;  evidence  is  admissible  for  the  plaintiff,  that  the 
defendant  had  property  at  the  time  in  qnestion,  and  had  put  it 
into  a  relative's  hands  for  the  purpose  of  securing  it  to  his  own 


use 


§  12.  A  debtor's  declaration  of  intention,  though  competent 
evidence  to  prove  his  fraudulent  disposition  of  property  in  order 
to  avoid  the  payment  of  his  debts,  must  not  have  been  made  at 
80  remote  a  period  as  to  prevent  them  from  becoming  part  of  the 
resgestce;  and  this  question  of  time  is  held  to  rest  in  the  sound 
discretion  of  the  judge  at  nisi  ijrius? 

§  13.  In  replevin,  for  goods  alleged  to  have  been  obtained  by 
fraud  and  false  pretences  from  the  plaintiff,  against  one  claiming 
them  as  a  subsequent  purchaser :  the  intent  to  defraud  cannot  be 
shown  by  declarations,  other  than  the  alleged  false  pretences, 
subsequently  made  by  one  A,  to  whom  the  plaintiff  was  referred 
by  the  purchaser  for  information  ;  nor  by  proof  that  the  plaintiff 
found  on  inquiry,  that  a  person,  whom  the  vendee  subsequently 
introduced  to  him  as  doing  business  at  a  certain  place,  did  not 
do  business  there."^ 

§  14.  Fraudulent  misrepresentations,  as  to  the  price  paid  for 
real  estate  by  the  vendor,  do  not  sustain  an  action  for  deceit  in 
the  sale.  Such  representations  are  to  be  regarded  in  the  same 
light  as  those  respecting  the  value.  A  purchaser  ought  not  to 
rely  upon  them.* 

§  15.  Upon  a  question  of  fraudulent  conveyance,  the  grantor 
may  testify  to  his  actual  intent.^ 

§  15  a.  Upon  the  issue  whether  the  defendant  made  fraudulent 
representations  to  the  plaintiff,  the  question  may  be  put  to  the 
defendant,  when  on  the  stand,  by  his  counsel,  "  State  what  you 
know  about  the  truth  of  the  representations  you  made  to  the 
plaintiff,  and  what  you  then  believed  in  relation  to  it ;  "  with 
instructions  to  the  jury,  that  the  answer  is  not  to  be  regarded  as 
conclusive,  but  that  they  should  consider  all  the  evidence  upon 
the  question  of  intent.^ 

§  16.  A  plaintiff,  who  has  received  from  the  defendant  letters, 

1  Foot  V.  Hunkins,  98  Mass.  52.3.  *  Henimer  v.  Cooper,  ib.  3-34. 

2  Hardee  i\  Langford,  6  Florida,  13.  5  iMathews  v.  Poultney,  33  Barb.  127. 

3  Easter  v.  Allen,  8  Allen,  7.  «  Watson  v.  Chesire,  18  Iowa,  202. 


CH.  VII.]  FRAUD    AS    A    GROUND   OP   ACTION    OR   DEFENCE.  505 

which,  if  existing,  would  be  admissible,  may  prove  their  contents 
by  secondary  evidence,  where  the  destruction  of  them  is  sliown 
to  have  arisen  from  misapprehension,  and  without  fraudulent 
purpose,  notwithstanding  their  destruction  was  the  plaintilf's 
own  voluntar}'  act.  To  rej)el  the  inference  of  fraud,  a  witness, 
who  was  present  and  advised  tiie  destruction  of  tlie  letters,  may 
be  allowed  to  state,  as  part  of  the  n'.s"  gestce^  his  declarations  made 
to  the  party  at  the  time.  The  destruction  of  the  letters  was  a 
question  for  the  court;  and  fiom  the  evidence  the  court  was  also 
to  decide  that  they  were  not  dishonestly  destroyed.^ 

§  17.  In  replevin,  for  goods  alleged  to  have  been  obtained  by 
fraud  and  false  pretences,  against  one  claiming  as  subsequent 
purchaser;  it  may  be  shown,  by  cross-examination  of  the  phiintiff, 
that  a  few  days  before  the  trial  he  made  a  complaint  against  the 
alleged  fraudulent  party,  and  caused  him  to  be  arrested  on  the 
morning  of  the  trial.^ 

§  18.  In  an  action  upon  a  contract,  fraud  is  admissible  as  a 
defence."^ 

§  19.  Where  goods  are  obtained  by  fraud  and  false  pretences, 
in  an  action  by  the  owner  against  a  subsequent  purchaser,  the 
burden  of  proof  is  upon  the  latter,  to  show  that  he  was  a  pur- 
chaser for  a  valuable  consideration,  without  notice.'* 

§  20.  An  agent,  employed  by  seller  and  purchaser,  on  the 
purchase  of  a  business,  may  be  liable  to  the  purchaser  for  false 
representations  as  to  its  value;  and,  if  he  declares  that  he  has 
personal  knowledge  of  the  facts,  and  his  statements  are  found 
to  be  false,  that  is  evidence  that  they  are  false  to  his  knowl- 
edge.^ 

§  21.  Although,  in  an  action  for  false  representation,  other  false 
statements  than  those  laid  may  be  proved  and  considered  by  the 
jury,  with  reference  to  the  question  whether  those  laid  were 
made  fraudulently;  the  declaration  will  not  be  amended  l»y  intro- 
ducing them  as  distinct  causes  of  action ;  at  all  events  without 
allowing,  if  necessary,  time  for  their  consideration  by  the  de- 
fendant.*^ 

§  22.  Where  a  widow  intervenes,  in  a  suit  between  the  cred- 

1  Tobin  V.  Shaw,  45  :\l!iine,  ?,^\.  *  Easter  v.  Allen,  8  Allen,  7. 

2  Easter  r.  Allen,  S  Allen,  7.  ^  Wrifjlit  v.  Self.  1  F  &  F.  704. 

3  Kobertson  v.  Keed,  47  I'enn.  115.  •»  Huiitingtou  r.  Massey,  ib.  (i'JO. 


506  EVIDENCE.  [book    IV. 

itors  of  her  late  husband  and  his  estate,  to  have  annulled  her 
renunciation  of  matrimonial  rights  in  a  notarial  act  of  mortgage, 
on  the  ground  of  fraud  ;  parol  evidence  is  admissible  to  show  the 
fraud,  although  the  notary  is  not  a  party  and  has  not  been  con- 
victed of  fraud.i 

1  Cox  V.  King,  20  La.  An.  209. 


CH.  VIII.]  assault;   false  imprisonment.  507 


CHAPTER   VIII. 

INJURIES   TO    THE    PERSON  ;    ASSAULT  AND   BATTERY ;    FALSE  IMPRISON- 
MENT ;    INJURIES   TO    HEALTH. 

1.  Assault,  &c.  12.  Injuries  to  health. 

6.  False  imprisonment. 

§  1.  In  an  action  for  assault  and  battery,  the  plaiutiir  may 
prove  previous  threats,  both  for  the  purpose  of  showing  that  the 
defendant  made  the  assault,  and  that  it  was  malicious.  Such 
a  threat  may  have  become  of  little  importance,  either  from  the 
time  elapsing  before  the  assault,  or  from  other  causes  ;  but,  upon 
principle,  a  threat  to  do  an  act  can  never  be  rejected  as  irrelevant, 
where  the  issue  is;  whether  the  party  making  the  threat  did  the 
act.  And  where  it  is  material  to  show  the  animus,  both  the  prior 
and  subsequent  declarations,  as  well  as  those  which  accompany 
the  act,  are  admissible,  whether  the  plaintiff  knew  of  the  threats 
before  the  assault  or  not.^ 

§  1  a.  In  defence  of  a  violent  assault,  a  provocation  two  weeks 
old  is  inadmissible.  But  a  record  of  a  conviction,  and  of  a  fine  and 
costs  incurred  for  the  assault,  is  admissible  in  mitigation  of  puni- 
tory damages.^ 

§  2.  It  is  not  competent,  in  such  a  suit,  to  prove  that  the  plain- 
tiff is  a  turbulent  man,  and  of  desperate  disposition  ;  nor  that  the 
defendant  is  a  quiet  man  and  of  peaceful  demeanor.^  Nor  is  evi- 
dence admissible  of  hostile  feelings,  or  a  previous  assault.^ 

§  2  a.  When,  in  a  trial  for  assault  and  battery,  it  is  shown 
that  the  defendant  was  under  reasonable  fear  of  his  life,  or  great 
bodily  harm,  from  the  prosecutor  ;  the  prosecutor's  temper,  in 
connection  with  previous  threats,  &c.,  is  sufficiently  part  of  the 
7'es  gestce  to  go  in  evidence  as  explanatory  of  the  state  of  defence 
in  which  the  defendant  placed  himself.'' 

1  Bartram  v.  Stone,  31  Conn.  150.  3  Sraithwick  v.  "Ward,  7  Jones,  64. 

2  Johnston  v.  Crawford,  riiill.  (N.  C.)  *  Dole  ».  Erskine,  37  N.  H.  316. 
L.  342.  s  MuUins  v.  Cottrell,  41  Miss.  2yl. 


508  EVIDENCE.  [book   IV. 

§  3.  Where  the  defence  of  property  is  set  up  as  a  justification, 
lawful  possession  is  sufficient,  without  proof  of  title  ;  as  where 
the  house  was  vacant,  but  a  servant  of  the  defendant  had  the 
key.^  So  where  the  stewards  of  a  musical  festival  occupied  a 
county  iiall,  tiie  title  of  which  was  in  the  county  justices,  accord- 
ing to  a  custom  for  several  years,  but  without  evidence  of  express 
permission.^ 

§  3  a.  Evidence  to  show  who  was  in  the  actual  occupation  of 
premises  in  dispute  is  admissible,  in  an  action  for  an  assault  and 
batter}'-  growing  out  of  such  dispute.^ 

§  4.  In  trespass  for  assault  and  battery,  words  uttered  by  the 
plaintiff  against  the  defendant,  on  a  former  occasion,  are  not 
admissible  in  mitigation.  Nor  statements  made  by  third  parties 
to  the  defendant  of  such  words.  The  defendant's  condition  in 
life  and  occupation  may  be  put  in  evidence.* 

§  5.  Though  the  defendant  offers  evidence,  not  objected  to,  of 
previous  provocation,  by  charging  him  with  a  crime,  evidence  for 
the  plaintiff  of  the  truth  of  such  charge  is  incompetent. 


5 


§  6.  In  an  action  for  false  imprisonment,  on  suspicion  of  steal- 
ing the  property  of  an  inmate  of  the  house  of  the  defendant,  with 
whom  the  plaintiff  lived  as  his  servant ;  the  fact  that  the  defend- 
ant signed  the  charge-sheet,  and  appeared  before  the  magistrate, 
is  strong  though  not  conclusive  evidence  that  he  authorized  the 
arrest.^ 

§  7.  In  an  action  for  malicious  arrest,  the  plaintiff  need  not 
prove  the  whole  of  the  proceedings  before  the  magistrates." 

§  8.  The  defendant  cannot  show,  under  the  plea  of  not  guilty, 
a  judgment  and  execution  against  the  plaintiff,  even  for  the 
avowed  purpose  of  proving  that  he  was  not  guilty  of  the  tres- 
pass.^ 

§  8  a.  To  establish  reasonable  and  probable  cause  in  the  action 
for  false  imprisonment,  it  is  not  necessary  to  prove  that  the 
defendant  beheved  the  facts  stated  in  his  plea,  and  that  he  acted 
upon  that  belief;  but  it  is  sufficient  to  prove  such  facts,  as  in  the 
opinion  of  the  judge  amount  to  reasonable  and  probable  cause. 

1  Hall  V.  Davis,  2  C.  «&  P.  33.  5  Mowrey  v.  Smith  (Mass.),  Law  Eeg. 

2  Thomas  v.  Marsh,  5  C.  &  P.  596.  Dec.  1865,  p.  121. 

3  Hardenburgh  v.  Crary,  50  Barb.  32.          s  Harris  v.  Digmim,  29  L.J.  Exch.  23. 
^  Jarvis  v.  Manlove,  5  Har.  452.  7  Biggs  v.  Clay,  3  Nev.  &  M.  464. 

8  Coats  V.  Darby,  3  Comst.  517. 


CH.  VIII.]  FALSE    IMPRISONMENT  ;    INJURIES   TO    HEALTH.  500 

Reasonable  and  probable  cause  is  a  question  for  tlic  judge,  and  Udt 
for  the  jury.^ 

§  9.  In  an  action  for  false  imprisonment,  the  plaiiitiO"  may  l)e 
asked  what  the  owner  of  the  article,  an  inmate  of  the  defendant's 
house,  stated,  in  the  presence  of  the  policeman,  as  to  what  the 
defendant  had  said  to  her,  on  her  going  to  ask  him  what  she 
should  do  as  to  giving  the  plaintiff  into  custody.^ 

§  10.  Upon  the  question  whether  a  release  of  personal  property 
was  obtained  by  duress  by  means  of  a  criminal  arrest;  the 
declarations  of  the  party,  prior  to  the  complaint,  are  admissi- 
ble evidence  against  him,  for  the  purpose  of  showing  probable 
cause.^ 

§  11.  Where  no  justification  is  pleaded,  upon  the  question  of 
damages  and  wrong  motives,  evidence  is  admissible  of  grounds 
of  suspicion,"* 

§  12.  Upon  a  question  made  as  to  tlie  pi-ofessional  skill  of  the 
defendant,  a  surgeon,  as  compared  with  that  of  the  profession  in 
general :  the  opinion  of  the  physician  with  whom  he  studied  his 
profession  is  not  competent  evidence  ;  nor  the  general  reputation 
among  the  profession  of  the  medical  institution  at  which  he  attended 
lectures  upon  surgery  ;  nor  his  declarations  made  to  a  physician, 
as  to  cases  alleged  to  have  been  treated  by  him,  and  their  symp- 
toms, and  the  course  of  treatment  pursued,  and  the  opinion  of  the 
physician,  derived  from  the  statements  and  from  the  symptoms 
observed  by  himself,  as  to  the  propriety  of  the  course  pursued 
by  the  defendant;  nor  his  manner  of  treatment  of  surgical  cases, 
two  years  after  the  treatment  of  which  complaint  is  made  in  the 
action,  and  eight  or  ten  months  after  the  commencement  of  the 
action.  The  fact,  that  a  surgeon  of  acknowledged  skill  assisted 
the  defendant  in  the  treatment  of  the  case,  a  part  of  the  time,  but 
not  by  his  procurement,  during  which  time,  however,  the  defend- 
ant had  the  charge  and  control  of  the  case,  and  the  consulting 
surgeon  disagreed  with  him  as  to  the  course  of  treatment  in  rela- 
tion to  which  the  unskilfulness  was  alleged  ;  is  not  competent 
proof  to  show  either  skill  or  diligence." 

1  Hailes  v.   Marks,  9  W.  R.  808;  4  L.  s  Haokctt  v.  Kintr.  8  Allen,  144. 
T.  (N.  S  )  805,  Exdi.  *  Brown  v.  Cliadscy.  :)'.•  I',;,rh.  253. 

2  Harris  v.  Difjjuim,  6  HurL  &   Nor.  *  LeiLMiton  v.  Sur^'ent,  11  Fost.  119. 
943  ;  29  L.  J.  Exch.  23. 


510  EVIDENCE.  [book   IV. 

§  13.  In  an  action  against  a  physician  for  unskilful  treatment 
of  a  cut  upon  the  plaintiff's  thumb,  several  pliysicians  testified 
that  the  disease  of  the  thumb  was  a  felon,  which  often  resulted 
from  a  punctured  wound.  Held,  that  it  was  not  competent  to 
inquire  of  the  plaintiff's  nurse,  who  had  attended  her  during  all 
the  time,  when  she  first  heard  of  a  punctured  wound  in  connec- 
tion with  the  injury,  it  not  appearing  that  the  defendant  had  ever 
assigned  that  cause  as  the  origin  of  the  disease.  The  declaration 
in  such  action  alleged,  that  the  defendant  fraudulently  represented 
to  the  female  plaintiff  that  she  was  doing  well,  in  consequence  of 
which  she  did  not  apply  to  other  physicians,  and  thereby  lost  the 
use  of  her  hand ;  but  there  was  no  evidence  that  the  plaintiffs 
desired  to  call  in  any  other  physician.  Held,  a  witness  could 
not  be  asked,  what  effect  was  produced  upon  his  mind  by  the 
declarations  of  the  defendant  concerning  another  physician  in 
the  same  town.  In  such  action,  evidence  is  not  competent  for  the 
plaintiff,  to  show  the  effect,  of  the  remedies  prescribed  by  the 
defendant  for  the  wife,  upon  a  person  entirely  well  ;  nor  to  prove 
that  the  husband  was  unable  to  labor,  and  dependent  upon  his  wife 
for  his  support;  there  being  no  allegation  in  the  declaration  of  a 
loss  of  the  wife's  services.  There  was  evidence  tending  to  show, 
that  the  defendant  did  not  communicate  to  the  plaintiff  the  nature 
of  the  disease,  but  that  he  opened  her  thumb,  giving  as  a  reason 
that  there  was  a  nerve  partly  cut  off,  and  it  would  be  better  to  cut 
it  entirely  off.  Held,  other  physicians  could  not  be  asked  :  •'  Is  it 
good  medical  practice  to  say  you  opened  a  thumb  to  cut  off  a  nerve, 
because  it  is  already  partly  cut  off?"  But  it  is  competent  for 
the  defendant  to  prove,  that  pliysicians,  in  addressing  their  patients, 
often  call  the  tendon  of  the  thumb  a  nerve  ;  and  that  it  is  good 
medical  treatment  in  some  cases  for  physicians  to  withhold  from 
patients  the  extent  of  their  disease  and  their  actual  condition  ; 
and  that  the  treatment  of  the  disease,  as  detailed  by  the  principal 
w^itness  for  the  plaintiffs,  was  proper  in  the  opinion  of  medical 
men.i 

1  Twombly  v.  Leach,  11  Cush.  397. 


CH.    IX.]  LIBEL    AND    SLANDER.  511 


CHAPTER    IX. 

EVIDENCE    IN    ACTIONS   FOR    LIBEL    AND    SLANDER. 

1  a.  Proof  of  other  words  than  those  al-  8.  VariMiice. 

leged.  10.  IMalice. 

3.  Evidence  as   to   the    understanding   of  17.  Evidence   in   mitiKntion   of  damages  ; 

the  words.  repetition;  report;  cliaiacter;  property. 

5.  As  to  damages.  25.  Justification  of  the  truth. 

§  1.  It  is  more  peculiarly  true  of  libel  and  slander  than  of 
almost  any  other  wrong,  that  a  consideration  of  the  wrong  itself 
necessarily  involves  a  view  of  the  evidence  relating  to  it;  which 
accordingly  has  been  somewhat  fully  treated  in  other  connec- 
tions.^ The  plan  of  the  present  work  requires  a  brief  additional 
notice. 

§  1  a.  In  an  action  for  slander,  other  words  than  those  for 
which  the  suit  is  brought  may  be  proved,  as  showing  the  intent.^ 
"  Every  uncalled-for  utterance  of  a  defamatory  charge  is  more  or 
less  indicative  of  the  speaker's  malice  at  the  time."^  So  the 
plaintiff's  answer  to  the  slanderous  words  at  the  time  they  were 
uttered.'^  The  whole  conversation  may  be  proved.^  But  not 
words  spoken  after  suit  brought  to  explain  the  others.*^ 

§  2.  In  an  action  for  a  libel,  the  declarations  of  the  defendant 
at  the  time  of  publication  are  evidence,  as  a  part  of  the  res  gestce 
and  to  show  the  quo  animo."'  But  not  a  verbal  explanation  of  the 
libel  at  the  time  of  publication.^ 

§  3.  It  is  held  that  evidence  may  be  given  of  the  sense  in  which 
the  words  were  undoi-stood  by  the  hearers,  unless  their  meaning 
was  clear.^  So,  although  the  mere  opinions  of  witnesses  as  to  the 
meaning  of  a  libel,  or  that  it  was  of  and  concerning  the  plaintiff, 
are  not  admissible  ;  yet,  when  the  words  are  ambiguous,  and  the 
application   doubtful,  it  must  be  shown   that  they  were   used  in 

1  See  Ililliard  on  Torts,  Chap.  XV.  «  Lucas  v.  Xiclinis,  7  Jones,  32. 

-  Taylor  t>.  Moran,  4  Met.  (Ky.)  127.  "^  Kice  v.  Simmons,  2  liar.  309. 

3  Per    Santlfbrd,  J.,  Swift  v.   Dicker-  **  Hapui  r.  Ilciidry,  \>^  Ind.  177. 

man,  31  Conn.  2'.(1.  9  Barton    v.    Ilohiics,    K)    Iowa,    252; 

*  Bradley  v.  Gardner,  10  Cal.  371.  Garret  v.  Dickcrson,  rjMd.418  ;  DeMoss 

5  Barton  v.  Holmes,  16  Iowa,  252.  v.  Haycock,  15  Iowa,  149. 


512  EVIDENCE.  [book    IV. 

their  actionable  sense,  and  were  applied  to  tlie  plaintifiF,  and  that 
the  hearers  so  understood  them,  and  therefore  the  testimony 
of  the  hearers  as  to  how  they  understood  the  words  is  admis- 
sible.i 

§  4.  But  the  understanding  of  the  by-standers  cannot  be  shown 
to  make  words  slanderous,  which,  as  stated  in  tlie  declaration,  are 
not /)er  se  actionable.^  Audit  is  held,  in  Pennsylvania,  notwith- 
standing some  cited  cases  to  the  contrar}^  that  tbe  opinion  of  a 
witness  that  the  [)laintifif  was  the  person  intended  is  not  compe- 
tent evidence.  "  A  party  cannot  thus  aid  the  innuendo  by  the 
opinion  of  the  witness.  ...  If  this  could  be  done,  there  would 
be  no  use  for  an  innuendo.  Its  office  would  be  supplied  by  the 
oath  of  witnesses,  who  would  draw  the  inference  from  precedent 
facts  instead  of  the  jury.  ...  It  is  the  business  of  witnesses  to 
state  facts,  and  the  province  of  the  jur}^  to  draw  such  inferences 
or  conclusions  from  them  as  they  shall  conscientiously  believe  to 
be  warranted."^  Nor  can  it  be  shown  that  the  words  were  used 
in  a  sense  different  from  their  natural  one,  unless  accompanied 
with  proof  that  such  different  meaning  was  explained  at  the  time 
they  were  uttered.*  It  is  for  the  jury,  not  for  an  expert,  to  judge 
of  the  meaning  of  the  words.  Thus,  where  the  words  were,  that 
the  plaintiff  was  "•  getting  up  a  bogus  baby-affair,"  a  "  Mrs.  Cuu- 
ningliam  affair,"  evidence,  as  to  what  was  generally  understood  by 
a  "  Mrs.  C.  affair,"  was  rejected.^ 

§  5.  In  an  action  for  slander  of  a  physician  in  his  profession, 
the  currency  of  the  slander  in  the  place  of  his  practice,  following 
the  utterance,  may  be  given  in  evidence,  as  well  as  its  effect  upon 
his  professional  gains,  in  aggravation  or  proof  of  damages,  with- 
out strict  proof  connecting  the  current  report  with  the  slander  of 
the  defendant;  the  fact  of  such  connection  being  a  question  for 
the  jury.*^  So  evidence  is  admissible,  in  enhancement  of  dam- 
ages, that  the  plaintiff  suffered  great  anxiety  and  distress  of  mind 
by  reason  of  the  slander,  though  the  charge  was  against  him  in 
his  professional  and  not  in  his  private  character.''  So  where  the 
plaintiff,  in  an  action  for  a  libellous  publication  in  a  newspaper 

1  Smart  v.  Blanchard,  42  N.  H.  137.  *  Dempsey  v.   Paige,  i  E.  D.  Smith, 

^  Sniith  r.  Gaftard,  33  Ala.  168.  218. 

3  Raigler  v.  Hummel,  37   Penn.  180 ;  &  Weed  v.  Bibbiiis,  32  Barb.  315. 

per  Thompson,  J.,  ib.  133,  134.  «  Riee  v.  Cottrell,  5  R.  I.  340. 

■J  Swifts.  Dickerman,  31  Conn.  285. 


CH.    IX.]  LIBEL    AND    SLANDER.  513 

charging  her  with  theft,  liad  alleged  as  special  damage,  that  she 
had  in  consequence  of  the  libel  been  discharged  by  one  A  from 
his  employment  as  a  seamstress  in  a  neighboring  town :  held,  she 
might  prove,  that  a  few  days  after  the  publication  A  had  said  to 
her,  that  there  were  flying  reports  in  the  newspapers  about  her 
and  her  sister,  and  that  it  would  injure  his  shop  to  have  such  girls 
there,  and  had  thereupon  discharged  her;  although  there  was  no 
other  evidence,  either  that  A  had  seen  the  particular  publication 
in  question,  or  as  to  what  reports  and  what  newspapers  he  referred 
to.^  But  one  charged  with  theft  cannot  show  that  he  is  a  minis- 
ter, in  order  to  enhance  the  damages,  where  there  is  no  averment 
of  that  fact,  and  no  allegation  of  special  damage  to  him  in  his 
profession.^  So  where  the  plaintiff,  a  surgeon,  sued  for  a  slander, 
charging  him  with  having  had  a  bastard  child  by  a  female  servant, 
alleging  that  the  words  were  spoken  to  A,  whereby  A  would  not 
employ  him,  and  that  he  was  otherwise  injured  in  his  business; 
held,  he  could  not  recover  for  damages  to  his  general  business 
occasioned  by  repetitions  of  the  slander,  but  which  did  not  follow 
directly  from  the  speaking  of  the  words  to  A.^  So,  in  an  action 
for  libels  of  and  concerning  the  plaintiff  as  an  opera  manager  ;  the 
question,  "  What  was  the  effect  upon  the  house  (the  plaintiff's 
Opera  House)  or  the  filling  of  the  house,  of  the  articles  that  were 
published  in  the  '  Herald,'  and  which  are  now  complained  of,"  is 
not  competent,  the  answer  being  a  mere  opinion.^ 

§  6.  It  is  held  that,  on  a  statement  of  special  damage  by  loss  of 
custom,  the  customers  themselves  must  be  called.^ 

§  7.  In  an  action  for  libels  published  in  the  defendant's  news- 
paper, although  the  complaint  alleges  that  the  defendant  boasted 
of  a  circulation  of  20,000  copies  daily,  and  although  this  allega- 
tion is  not  denied  by  the  answer  ;  copies  published  by  him,  at 
about  the  date  of  the  libels,  stating  a  greater  circulation  at  that 
time,  are  competent  evidence  to  prove  that  fact.^ 

§  8.  Upon  the  subject  of  variance  between  the  words  alleged 
and  those  proved,  some  late  cases  adopt  a  strict  rule,  though 
doubting  its  policy.  The  rule  is  attributed  to  the  f\ict,  that  "  the 
action  of  slander  has  not  been  regarded  with  any  great  favor  by 
the    courts."^     Thus,  in  an  action  for  slander,  so  many  of  the 

1  Moore  v.  Stevenson,  27  Conn.  14.  »  Wood  v.  Jones,  1  F.  &  F.  301. 

2  Gaudy  v.  Humpliries,  35  Ala.  017.  ^  Fry  v.  Bennett,  3  Bosw.  200. 

3  Dixon  V.  Smitli,  o  Hurl.  &  Nor.  450.  T  Per   Walker,  J..    2'.»  111.    45'J.      See 
*  Fry  V.  Bennett,  6  Bosw.  200.  M'Ciurkin  c.  Ewing,  42  III.  283. 

33 


514  EVIDENCE.  [book   IV. 

words  complarned  of  must  be  proved  as  will  establish  the  slan- 
der; not  other  words  of  similar  import,  or  equivalent  words. 
More  words  may  be  proved,  provided  they  do  not  change  the 
meaning.  A  difference  in  the  tense  of  the  word  proved,  and 
that  alleged,  will  defeat  a  recovery, —  as  the  use  of  "  has  "  for 
''  had."  1 

§  9.  It  is  held  calculated  to  mislead  the  jury,  to  refer  it  to  them 
to  determine,  whether  the  defendant,  "  in  substance,"  spoke  or 
published  the  words  charged,  without  explaining  the  meaning 
which  the  law  would  attach  to  that  expression  in  connection  with 
the  pi'oof  of  the  slander  charged.^ 

§  9  a.  Where  the  plaintiff  alleges  an  office  or  special  character, 
it  is  generally  held  sufficient  to  prove  actual  possession  and  en- 
joyment of  the  office,  or  actual  exercise  of  the  employment  or 
profession.^  But  an  allegation  of  the  mode  of  the  plaintiff's 
appointment  must  be  proved ;  as  in  case  of  the  allegation  that  he 
has  taken  a  medical  degree.'*  If  the  charge  itself  assumes  the 
alleged  office  or  employment,  this  need  not  be  proved.^ 

§  10.  In  an  action  for  slanderous  words,  malice  is  an  essential 
fact,  and  should  always  be  proved.^  The  defendant's  manner,  and 
other  circumstances  accompanying  the  slander,  may  be  proved 
on  the  question  of  malice.'^  And,  while  malice  is  doubtless  to  be 
inferred  from  falsehood,  evidence  of  actual  malice  is  admissible 
upon  the  question  of  damages.^ 

§  11.  Repetition  of  the  slanderous  words,  or  similar  words,  after 
suit  brought,  are  held  admissible  proof  of  malice ;  but  not  other 
words,  amounting  to  a  distinct  slander.^  And  when  words,  oral 
or  written,  actionable  in  themselves,  other  than  the  publication 
declared  on,  are  offered  in  evidence  to  pi'ove  malice,  the  court 
must  caution  the  jury  that  they  are  not  to  increase  the  damages 
on  that  account.i*^  Thus  A,  and  B  his  wife,  sued  C,  and  D  his 
wife,  for  the  slander  of  B  by  D,  and  introduced  evidence  to  prove 
the  words,  and  that  they  were  similar  to  those  contained  in  an 
anonymous  letter,  said  to  have  been  written  and  sent  by  D  to  B  ; 

1  Wilborn  v.  Odell,  29  111.  456.  See  5  Berryman  v.  Wise,  4  T.  R.  866 ; 
Maybee  v.  Fisk,  42  Barb.  326.  Yrisarri  v.  Clement,  3  Bing.  432  ;  Cum- 

2  Atteberry  v.  Powell,  29  Mis.  429.  men  v.  Smith,  2  S.  &  R.  440. 

3  Jones  V.  Stevens,  11  Price,  235;  Ber-  •>  Harry  v.  Constantin,  14  La.  An.  782. 
ryman  v.  Wise,  4.  T.  R.  66.     See  Sellers  ^  Parke  v.  Blackiston,  3  Har.  373. 

V.    Till,   4   B.   &    C.  655  ;  McPherson  v.  ^  Fry  v.  Bennett,  3  Bosw.  200. 

Chedeall,  24  Wend.  24;  Smith  v.  Taylor,  9  Parmer  ;•.  Anderson.  33  Ala.  78. 

1  N.  R.  196.  i»  Lettou  v.  Young,  2  Met.  (Ky.)  558. 
*  Moises  V.  Thornton,  8  T.  R.  303. 


CH.    IX.]  LIBEL    AND    SLANDER.  515 

whicli  letter  contained  libellous  statements  against  l)otli  B  and  her 
dauglitor.  Held  admissible,  for  the  purpose  of  showing  malice, 
though  not  to  atfect  the  damages,  provided  the  jury  were  cau- 
tioned by  the  court  upon  this  latter  point;  that  portion,  however, 
relating  to  the  daughter  being  evidence  for  no  purpose  whatso- 
ever. An  instruction  was  given  to  the  jury,  to  the  effect  that 
the  letter  was  only  admissible  to  show  malice,  and  for  no  other 
purpose,  and  that  they  had  a  right  to  award  such  damages  to  the 
plaintiffs  as  they  thought  them  entitled  to  from  all  circumstances 
proved  in  the  case,  lleld,  the  caution  to  the  jury  was  not  suffi- 
cient.^ 

§  12.  Passion  does  not  disprove  malice.^ 

§  13.  Where  the  plaintiff,  to  show  malice,  proves  an  admis- 
sion of  the  defendant,  as  to  a  conversation  with  the  defendant's 
brother  ;  the  defendant,  to  rebut  the  inference  of  malice,  may  show 
what  he  actually  did  say,  and  the  circumstances  of  the  conversa- 
tion.2 

§  14.  When  the  libel  is  primd  facie  a  privileged  communica- 
tion, it  is  open  to  the  plaintiff  to  put  in  evidence  subsequent 
statements  made  by  the  defendant,  as  tending  to  show  malice  at 
the  time  of  publication.  The  judge  ought,  especially  if  there  be 
a  considerable  interval  between  such  statements  and  the  publi- 
cation, to  direct  the  jury  to  consider,  whether  such  subsequent 
statements  might  not  refer  to  something  which  happened  subse- 
quently to  the  libel,  so  as  not  to  show  malice  at  the  time  of  publi- 
cation.* 

§  15.  Circumstances  tending  to  disprove  malice  are  admissible, 
in  a  slander  suit,  in  mitigation  of  damages,  but  not  evidence  of 
the  apparent  good  humor  of  the  defendant,  when  uttering  language 
clearly  slanderous.^  And  where  mitigating  circumstances  are 
offered  in  evidence,  for  the  purpose  of  repelling  the  presumption 
of  malice,  it  should  be  shown  that  he  knew  of  them  at  the  time 
he  made  the  charge.*^ 

§  16.  The  Act  of  1855,  of  Connecticut,  with  regard  to  libels, 
provides,  that,  "in  every  action  for  an  alleged  libel,  the  defendant 
may  give  proof  of  intention;  and  unless  the  plaintiff  shall  prove 

1  Letton  V.  YoiiiiR,  2  Met.  (Ky.)  658.  *  Ilemmings  v.  Gasson,  1  Ell.  B.  &,  E. 

2  Hosley  ('.  Brooks,  20  111.  115.  346. 

»  iSmitli  V.  Gafliird,  ;i  Ala.  108.  5  "Weaver  c.  Hen.lrick,  30  Mis.  602. 

6  Swift  V.  Dickerman,  31  Coiin.  285. 


516  EVIDENCE.  [book    IV. 

malice  in  fact  he  shall  recover  nothing  but  his  actual  damage 
proved  and  specially  alleged  in  the  declaration."  Held,  the  former 
provision  was  only  an  extension  of  a  previous  rule ;  such  evi- 
dence having  been  always  admissible  in  reduction  of  damages, 
and  the  only  difference  here  being,  that,  in  the  absence  of  rebut- 
ting proof  on  the  part  of  the  plaintiff,  it  prevents  the  recovery  of 
general  damages.  The  latter  provision  was  not  intended  to  pre- 
scribe any  new  rule  as  to  the  kind  and  degree  of  malice  to  be 
proved,  or  as  to  the  evidence  by  which  it  was  to  be  shown,  but 
only  to  require  other  evidence  than  mere  legal  presumption  from 
the  fact  of  publication.  That  the  motives  of  the  defendant  were 
improper  and  unjustifiable,  may  be  shown  by  the  character  of  the 
publication  itself,  and  by  all  the  circumstances,  without  proof  of 
any  actually  hostile  motive.  This  construction  of  the  act  recon- 
ciles it  with  the  provision  of  the  constitution,  that  "  every  person, 
for  an  injury  done  him  in  his  person,  property,  or  reputation,  shall 
have  remedy  by  due  course  of  law,  and  right  and  justice  adminis- 
tered without  sale,  denial,  or  delay."  ^ 

§  17.  Evidence  is  not  admissible,  on  the  part  of  the  defendant, 
of  previous  harsh  language  of  the  plaintiff's  wife  at  the  time.^ 
Nor,  in  mitigation,  that  in  other  conversations  he  spoke  of  the 
plaintiff  less  offensively.^ 

§  18.  Evidence  is  not  admissible,  that  the  alleged  slander  was 
a  mere  repetition  of  what  had  been  said  by  another,  unless  the 
authority  was  given.*  So,  if  the  defendant  would  avail  himself  in 
mitigation  of  damages  of  the  fact,  that  at  the  time  he  told  the 
injurious  story  he  mentioned  the  name  of  the  author  ;  it  must  not 
only  appear  that  he  did  so  mention  his  author,  but  also  that  he 
did  so  receive  the  story .^ 

§  19.  It  is  held,  that  in  an  action  for  slander  the  defendant 
may  show,  in  order  to  disprove  malice  and  in  mitigation  of 
damages,  that,  when  the  words  were  uttered,  a  general  report 
existed  that  the  plaintiff  had  committed  the  act  charged.^  (See 
§  21.)  So  for  the  purpose  of  proving,  that  the  owner  of  a  build- 
ing set  on  fire  had  reason  to  believe  that  a  particular  person  was 
the  incendiary,  and  used  good  faith  in  making  statements  charg- 

1  Hotchkiss  V.  Porter,  20  Conn.  414  ;  ■*  Elliott  v.  Boyles,  31  Penn.  65. 

ace.  Moore  v.  Stevenson,  27  ib.  14.  5  i^i^e  v.  Cottrell,  5  R.  I.  340. 

•■J  Hosley  v.  Brooks,  20  111.  115.     See  6  Wetherbee  o.  Marsli,  20  N.  H.   561  ; 

Thomas  v.  Dunaway,  30  ib.  373.  Morris  v.  Barker,  4  Har.  520. 

3  Bradford  v.  Edwards,  32  Ala.  628. 


CH.    IX.]  LIBEL    AND   SLANDER.  517 

ing  him  with  the  crime;  evidence  that  he  was  informed  of  decla- 
rations and  acts  of  the  suspected  person,  tending  to  show  his  guilt, 
is  competent.^ 

§  20.  But  other  cases  hold  the  contrary .^  Thus  it  is  hold,  that 
the  defendant  cannot,  under  the  general  issue,  prove  that  the 
words  were  but  a  repetition  of  common  reports,  either  to  rebut 
malice  or  mitigate  damages.  Nor,  for  either  purpose,  acts  of  the 
plaintiff  tending  to  excite  suspicions  that  he  was  guilty  of  the 
crime  charged,  but  stopping  short  of  actual  proof  of  such  guilt; 
although  it  is  also  proposed  to  show,  that  at  the  time  the  words 
were  uttered  a  public  investigation  was  going  on,  involving  an 
inquiry  into  the  plaintiff's  conduct,  and  was  a  subject  of  public 
remark.^  So  it  cannot  be  proved,  that  the  plaintiff  was  the  object 
of  general  suspicion  in  the  neighborhood  in  relation  to  the  act 
charged.*  Nor  that  another  person  had  previously  made  the 
same  charge,  and  the  plaintiff  did  not  deny  it.^  Nor,  in  case  of 
an  alleged  libel  in  a  newspaper,  that  a  similar  article  had  recently 
appeared  in  another  paper. '^  More  especially,  if  the  libellous 
matter  be  stated  positively  in  the  publication,  and  not  as  resting 
in  rumor  merely ;  the  mere  existence  of  the  rumor,  known  to  all 
parties,  is  not  admissible  in  mitigation  of  damages." 

§  21.  It  is  generally  held,  that  evidence  of  character  is  admis- 
sible.^ Thus,  in  mitigation  of  damages,  of  the  plaintiff's  bad 
character.^  Hence,  in  an  action  of  slander,  charging  the  defend- 
ant with  having  accused  the  plaintiff  of  adultery,  it  is  competent 
for  the  defendant,  in  mitigation  of  damages,  to  prove  that  the 
plaintiff  was  commonly  reputed  to  be  unchaste  and  licentious. ^^ 
Other  cases,  however,  hold  the  contrary. ^^  And  in  a  recent  case 
in  England  it  is  held,  that,  in  an  action  for  libel,  where  there 
is  no  plea  of  justification,  questions  cannot  be  asked,  tending  to 
show  the  plaintiff's  previous  bad  character,  in  mitigation  of 
damages. ^'-^  And  the  distinction  is  made,  between  evidence  of  the 
plaintiff's  bad  character,  and  that  of  particular  reports,  relating 
to  the  charge  in  question.^^     (See  §  19.)     Thus,  in  an  action  by 

1  Lawler  v.  Earle,  5  Allen,  22.  9  Fuller  v.  Dean,  31  Ala.  654  ;   20  Til. 

2  Richardson?'.  Roberts,  23  Geo.  215.     325;  Conroe   v.    Conroe,   47   renn.   l'.»8; 

3  Kniglit  V.  ?'()stcr,  3'.>  N.  H.  07G.  Burton  r.  March,  6  Jones,  40'J ;  Waples  u. 
*  Fuller  V.  Dean,  31  Ala.  654.  Burton,  2  Har.  446. 

5  lb.  1"  Briduman  v.  Hopkins,  34  Verm.  69. 

6  Sheahan  v.  Collins,  20  111   325.  n  Parke  v.  Blackis^ton.  3  Har.  373. 

7  Haskins  v.  Lumsiltn,  10  Wis.  359.  i-  Bracc-irdle  v.  Bailey,  1  F.  &  F.  536. 

8  See  Bryan  v.  (Jurr,  27  Geo.  378.  '3  yheahan  v.  Collins,  20  111.  325. 


618  EVIDENCE.  [book   IV. 

a  female  for  a  charge  of  general  uncliastity,  upon  a  plea  of  the 
general  issue,  evidence  is  admissible  for  the  defendant  of  the  bad 
general  reputation  of  the  plaintiff  for  chastity,  but  not  of  reports 
of  particular  acts  of  incontinency.  The  court  remark  :  "  Without 
undertaking  to  review  at  length  the  numerous  decisions  made, 
especially  in  the  English,  Massachusetts,  and  New  York  courts, 
upon  the  question  how  far,  in  actions  of  slander,  the  defendant 
may,  under  the  plea  of  not  guilty,  attack  the  character  of  the 
plaintiff,  it  may  be  safely  said  to  be  almost  everywhere  settled, 
that  evidence  of  general  bad  reputation  is  admissible  in  miti- 
gation of  damages.  Whether  reputation  in  that  department  of 
character  which  the  alleged  slander  has  assailed  may  be  given  in 
evidence,  is  perhaps  not  so  well  established  by  authority.  In 
many  of  the  cases  the  question  has  been  embarrassed  by  the 
pleadings.  There  has  been  no  plea  of  not  guilty,  or  it  has  been 
accompanied  with  a  plea  or  notice  of  justification."  ^  So,  in  an 
action  for  charging  a  female  with  unchastity,  evidence  that  the 
plaintiff's  general  reputation  is  bad,  independently  of  the  slander 
of  which  she  complains,  and  that  it  was  bad  ten  years  before,  and 
at  another  place,  is  admissible  in  mitigation  of  damages,  although 
no  such  ground  of  defence  is  set  up  in  the  answer.  But  evidence 
of  particular  instances  of  her  misconduct  is  not  admissible.-  And 
it  cannot  be  shown,  in  mitigation  of  damages,  that  the  plaintiff 
was  quarrelsome.^ 

§  22.  It  is  held,  that  no  evidence  can  be  offered  of  the  plaintiff's 
good  character,  till  it  has  been  attacked.*  The  law  presumes  his 
character  to  be  good.^  And  this  notwithstanding  the  proof  of 
circumstances  under  the  general  issue,  which  may  have  awakened 
suspicion  of  the  plaintiff's  guilt  in  the  mind  of  the  defendant.^ 

§  23.  In  an  action  for  a  libel  upon  the  plaintiff,  in  connection 
with  a  donation  party  which  she  had  attended,  the  character  of 
that  party,  and  the  conduct  of  its  members,  cannot  be  proved  by 
the  defendant  under  the  general  issue.'' 

§  24.  It  is  held,  that  the  wealth  of  the  defendant  cannot  be 
offered  in  evidence ;  ^  (a)  nor  his  poverty;^  nor,  in  general,  his 

1  Conroe  v.  Conroe,  47  Penn.  198  ;  per         ^  Parke  v.  Blackiston,  3  Har.  373. 
Strong,  J.,  ib.  200.  «  Chubb  v.  Gsell,  34  Penn.  114. 

2  Parkhurst  v.  Ketchura,  6  Allen,  406.  "?  Smart  v.  Blanchard,  4'.^  N.  H.  137. 

3  Hosley  v.  Brooks,  20  111.  115.  »  Palmer  v.  Haskins,  28  Barb.  90.  Con- 

4  Tibbs  V.  Brown,  2  Grant,  39  ;  3  Har.  tra,  Humphries  v.  Parker,  52  Maine,  502. 
373  ;  34  Penn.  314.  9  Pool  v.  Devers,  30  Ala.  672. 

(a)  In  actions  for  personal  injuries,  wealth  of  the  defendant  is  inadmissible, 
proof,  either    direct   or  indirect,   of  the    Moody  v.  Osgood,  50  Barb.  628. 


CH.    IX.]  LIBEL   AND    SLANDER.  519 

circumstances  as  to  property. ^     But  evidence  of  the  rank,  profes- 
sion, or  standing  of  either  party  is  admissible.- 

§  25.  The  truth  is  a  good  defence  to  an  action  for  libel  or  slan- 
der ;3  and  this,  notwithstanding  malice.^     But  when  a  defendant 
in  slander  pleads  the  general  issue,  he  admits  that  the  plaintiff  is 
innocent  of  the  charge.     The  truth  can  only  be  shown  under  a 
plea  of  justification.^     The  defendant  cannot,  upon    plea  of  the 
general  issue,  prove  the  truth  of  the  words  charged,  for  the  pur- 
pose of  disproving  malice  or  of  mitigating  damages;^  though  it 
is  held,  that  he  is  not  to  be  denied  the  benefit  of  mitigating  cir- 
cumstances, merely  because  they  tend  to  prove  the  truth  of  the 
charge,  while   they  fall   short  of  it ;   and  may  show   by  way  of 
excuse  any  thing  short  of  a  justification,  which  repels  the  pre- 
sumption of  malice,  but  does  not  necessarily  ii.  ply  the  truth  of  the 
charge,  or  necessarily  constitute  evidence  of  it."     And,  in  an  action 
for  slanderous  words,  the  defendant  cannot  in  the  same  answer 
deny  and  also  justify  the  words.     So  an  answer  justifying  the 
speaking  must  confess  it.     And  an  answer,  merely  stating  that 
the  words  spoken  are  true,  is  not  sufficient  as  a  justification :  it 
should  state  the  facts  constituting  the  crime  or  offence  imputed, 
so  that  an  issue  either  of  law  or  fact  may  be  found.^     And   evi- 
dence is  sometimes  held  not  admissible  in  mitigation  of  damages, 
which  tends  to  prove  the  truth  ;  "  such  as  would,  in  the  mind  of 
a  prudent  man,  justly  awaken  suspicions  of  guilt  of  the  crime 
imputed.     The  purpose  of  the  testimony  is  to  mitigate  the  legal 
imputation  of  malice,  on  the  ground  of  misapprehension,  as  to  the 
character  of  the  acts  out  of  which  tlie  imputation  of  guilt  was 
made,  and  consequently  the  damages.     It  must  not  tend,  at  the 
same  time,  to  prove  the  truth  .  .  .  and  hence  that  there  was  no 
misapprehension."  ^ 

§  2G.  But  although  the  truth  of  the  charge  cannot  be  proved  in 
mitigation  of  damages;  it  is  sometimes  held,  that  for  this  purpose 
the  defendant  may  prove,  under  the  general  issue,  a  belief  of  its 
truth,  and  the  facts  upon  which  such  belief  is  founded.  Thus,  in 
an  action  for  the  charge  of  poisoning  a  cow,  the  defendant  may 

1  Morris  v.  Barker,  4  liar.  520.  ^  Swift  v.  Dickcrman,  31   Conn.  285; 

2  Parke  v.  Blackistun,  ?>  Har.  373.  Kniglit  v.  Foster,  3'.t  N.  II.  570. 

3  Kayiie  v.  Taylor,  14  La.  An.  40G ;  3  ■?  Swift  v.  Dickerman,  31  Conn.  28.5. 
Bosw.  200.  8  Atteberry  r.  Powell,  2'.i  Mis.  42'.t. 

4  Fry  !'.  Bennett,  3  Bosw.  200.  9  Per  Thompson,  J.,  Suiitli  j;.  Smith, 
6  Sheahan  v.  Collins,  20  111.  325.                39  Penn.  442. 


520  EVIDENCE.  [book   IV. 

prove  an  actual  poisoning;  the  hostility  of  the  plaintiff;  that  the 
defendant  had  poisoned  his  dog,  and  the  plaintiff  had  threatened 
to  pay  him  in  his  own  coin  ;  and  that  the  defendant  had  attempted 
to  instigate  a  malicious  prosecution  against  the  plaintiff.^  So 
where  the  words  spoken  charged  the  plaintiff  with  attempting  to 
produce  a  '*  bogus  "  baby  ;  the  defendant,  admitting  their  falsity, 
and  setting  up  in  mitigation  of  damage,  that  in  common  with 
others  he  believed  the  charge,  may  show,  on  the  question  of 
damages,  as  tending  to  prove  absence  of  malice  and  a  well-founded 
belief,  that  the  physical  condition  of  the  father  was  such  as  to 
induce  a  sincere  belief  that  at  tiie  time  he  was  incapable  of  pro- 
creation.2  (a)  And  it  is  held  in  New  York,  that,  if  the  defendant 
fails  to  prove  his  plea  of  justification,  he  may  still  offer  evidence 
in  mitigation,  if  the  mitigating  facts  are  stated  in  the  answer.^ 
But  it  is  no  defence  to  an  action  for  slander,  by  words  imputing 
unchastity  to  a  woman,  to  show  that  the  defendant  spoke  the 
Avords  to  her,  and  was  led  to  do  so  by  her  general  conduct,  and 
especially  by  her  deportment  with  a  particular  man,  believing 
the  same  to  be  true.'^  So  a  belief  of  the  truth  is  held  no  defence 
to  an  action  for  libel  ;^  more  especially  if  the  party  was  indiffer- 
ent whether  it  were  true  or  false.^ 

§  26  a.  It  is  held,  that,  where  the  defendant  pleads,  and  offers 
evidence  tending  but  failing  to  prove,  the  truth ;  if  this  defence  is 
made  bond  Jide,  and  not  with  the  purpose  of  spreading  and  per- 
petuating the  original  slander,  it  ought  not  to  aggravate  the  dam- 
ages: and  whether  the  defence  is  made  with  a  fair  or  malicious 
purpose,  is  a  question  for  the  jury.'^  (b) 

§  27.  It  is  held,  that,  under  a  plea  of  the  truth,  evidence  must  be 
offered  which  would  convict  of  the  crime  charged.^  Thus,  in  an 
action  for  charging  perjury,  the  plea  of  justification  must  be  estab- 

1  Hutchinson  v.  Wheeler,   35   Verm.  •>  Moore  v.  Stevenson,  27  Conn.  14. 
330.                                                                             1  Pallet  v.  Sargent,  36  N.  H.  496. 

2  Weed  V.  Bibbins,  32  Barb.  315.  8  Forshee  v.  Abrams,  2  Clarke  (Iowa), 

3  Russ  V.  Brooks,  4  E.  D.  Smith,  644.  571.  See  Hilliard  on  Torts,  c.  15,  §  34; 
*  Parkhurst  v.  Ketchum,  6  Allen,  406.  Ellis  v.  Buzzell  (Maine),  Amn.  Law  Reg. 
5  Ery  V.  Bennett,  3  Bosw.  200.  July  1873,  p.  426. 

(a)  It  is  held  in  a  late  English  case,         (b)  Upon   the    point,    whether    an  at- 

that,  in  an  action  by  an  optician  against  tempted  justification  aggravates  the  slan- 

a  newspaper  proprietor,  for  inserting  an  der,  or  whether,  if  set  up  bond  Jide,  it  is 

advertisement  alluding  to  him  as  a  licensed  no  aggravation  ;  see  Gorman  v.   Sutton, 

hawker  and  quack  in  spectacle  secrets  ;  32  Penn.  247  ;  Richardson  v.  Roberts,  23 

evidence  tiiat  this  was  true  is  admissible  Geo.   215;  Pool  v.  Devers,  30  Ala.  672; 

under  the  general  issue,  as  showing  that  Rayner  v.  Kinney,  14  Ohio  St.  283. 
the  advertisement  was  not  a  libel.     Ivey- 
zor  V.  Newcomb,  1  E.  &.  E.  487. 


CH.    IX.]  LIBEL   AND    SLANDER.  521 

lished  by  such  amount  of  evidence  as  would  authorize  a  conviction 
for  that  crime. ^  So  it  is  hehl,  that  tlie  truth  cannot  be  established 
by  indirect  and  remote  evidence.^  And  the  justification  must 
apply  to  the  very  charge  complained  of.  Thus,  where  the  same 
otfence  was  committed  only  once,  instead  of  repeatedly,  as  charged, 
the  justification  was  held  bad.^  So  where,  in  slander,  the  worda 
laid  in  the  declaration  charged  tiiat  the  plaintiff  committed  an 
offence  with  one  person  ;  evidence  that  he  had  committed  a  like 
offence  with  other  persons  will  not  be  received,  either  as  a  defence 
or  in  mitigation  of  damages.  Nor  evidence  that  he  had  committed 
a  different  offence  either  with  the  same  or  with  other  persons. 
Thus  where  the  words  laid  charged  that  the  plaintiff  had  com- 
mitted a  rape  on  a  particular  person,  named  in  the  declaration ; 
evidence  will  not  be  received,  that  he  had  attempted  to  commit 
a  rape  on  the  same,  and  also  on  another  person,  either  as  a  defence 
or  in  mitigation  of  damages.  Nor  will  evidence  be  received  in 
mitigation,  that  the  plaintiff  had  admitted  and  boasted  that  he 
had  committed,  with  other  persons,  offences  of  a  like  character 
with  that  charged  upon  him  by  the  words  laid  in  the  (h  claration.* 
So,  under  a  plea  of  justification,  in  a  suit  for  charging  the  plaintiff 
with  fornication  with  a  certain  man,  evidence  that  her  child  is  a 
bastard  is  not  sufficient.'^  So  where  the  charge  was,  that  the 
plaintiff,  a  physician,  had  no  professional  knowledge  or  skill,  and 
lost  almost  all  his  patients;  held,  proof  of  particular  instances,  in 
which  the  plaintiff  had  shown  want  of  knowledge  and  skill,  was 
inadmissible,  for  the  purpose  of  mitigating  damages,  or  showing 
the  professional  reputation  of  the  plaintiff.  Reputation  can  only 
be  proved  by  the  direct  testimony  of  those  who  are  acquainted 
with  it,  and  not  by  particular  facts.^  So  the  plaintiff  was  charged 
in  a  newspaper  with  having  "  made  himself  invisible  on  account 
of  too  much  borrowing  and  not  paying;  that  is  to  say,  ran  away." 
Innuendo,  that  he  had  borrowed  articles  of  property,  and  then 
ran  away  and  absconded,  without  paying  for  or  returning  the 
same.  General  justification,  without  specification  of  particulars. 
Held,  the  charge  was  not  met  by  evidence  of  the  plaintiff's 
absconding  in  debt."     So  in  an  action  for  slander,  in  accusing  the 

1  Gorman  v.  Sutton,  32  Penn.  247.  ••  Pallet  v.  Sargent,  36  N.  II.  496. 

-  Forsliee  v.  Abraius,  2  Clarke  (Iowa),  *  Richardson  v.  Roberts,  23  Geo.  215. 

571.  i>  Swift  r.  Dickeiman,  ol  Conn.  285. 

3  Burford  v.  Wible,  32  Penn.  95.     See  '  WaslUen   v.   Queuzer,   29   N.  Y.   (2 

Forsliee  v.  Abrams,  2  Clarke  (Iowa),  571.  Tiffa.)  547. 


522  EVIDENCE.  [book   IV. 

plaintiff  of  buying  and  selling  by  unsealed  weights  and  meas- 
ures, and  also  of  the  crime  of  gross  fraud  and  cheating  at  com- 
mon law;  a  justification  of  the  truth  cannot  be  supported  by 
evidence,  that  the  plaintiff  "applied  to  a  person  to  take  some 
damaged  meat  and  sell  it,  without  letting  it  be  known  that  the 
plaintiff  was  connected  in  the  transaction."  ^  So  the  defendant 
published  of  the  plaintiffs,  coal-merchants,  what  purported  to  be 
a  report  of  an  inquiry  before  a  board  of  guardians  respecting 
the  fraudulent  conduct  of  the  plaintiffs'  agent,  who  in  per- 
formance of  a  contract  for  '^  best  coals,"  had  delivered  at  the 
workhouse  coals  of  an  inferior  description,  and  (by  falsifying  the 
weighing  machine  by  means  of  a  wedge)  deficient  in  weight. 
The  libel  commenced,  "  The  way  in  which  Messrs.  P.  (the  plain- 
tiffs) do  things  at  Guildford.  Inserting  the  wedge ;  "  and  ended 
with  a  recommendation  of  one  of  the  guardians  to  "  have  nothing 
more  to  do  with  Messrs.  P. ;  "  innuendo,  "  the  defendant  meaning 
thereby  that  the  plaintiffs  were  cognizant  of,  and  had  sanctioned 
improper  and  fraudulent  conduct  by  their  agent  at  Guildford, 
and  were  accustomed  to  carry  on  their  said  trade  there  improperly 
and  fraudulently."  The  defendant  pleaded  a  justification,  fol- 
lowing the  innuendo,  and  saying  that  the  coals  delivered,  as 
mentioned  in  the  libel,  were  inferior  in  quality,  as  the  plaintiffs 
well  knew,  and  deficient  in  weight.  Held,  the  defendant,  having 
by  his  plea  alleged  that  the  fraud  of  their  agent  was  sanctioned 
by  the  plaintiffs,  must  prove  that  the  libel  imputed  personal 
misconduct  and  fraud  to  the  plaintiffs,  and  the  jury  were  bound 
to  find  for  the  plaintiffs,  unless  satisfied  that  the  defendant  had 
shown  some  complicity  on  their  part  in  the  misconduct  and  fraud 
imputed  to  their  agent.^  But  au  action  of  slander  for  charging  a 
man  with  having  the  venereal  disease,  and,  with  tliat  disease  upon 
him  contracting  marriage,  and  communicating  the  disease  to  his 
wife,  cannot  be  maintained,  if  the  plaintiff  immediately  after  his 
marriage  had  the  disease  in  fact,  even  by  proof  that  his  wife,  whom 
he  married  without  knowing  that  she  had  the  disease,  communi- 
cated it  to  him.'^ 

§  27  a.  Where  the  defendant,  to  an  action  for  slander,  pleads 
the  general  issue  and  a  justification,  he  may  give  evidence  in 
mitigation  of  damages  under  the  general  issue  ;  though  it  may 

1  Chapman  v.  Ordway,  5  Allen,  593.  3  Golderman  v.  Stearns,  7  Gray,  181. 

2  Prior  V.  Wilson,  1  C.  B.  (N.  S.)  95. 


CH.    IX.]  LIBEL,  ETC.  ;    MALICIOUS    PROSECUTION.  523 

be  doubted  whetlier  he  can  do  it  when  a  justification  is  pleaded 
alone.^ 

§  27  b.  Where  alleged  libels  imputed  to  the  plaintiff,  an  opera 
manager,  cruel  treatment  towards  his  artists,  and  the  defendant 
justified ;  evidence  of  the  opinions  of  third  persona  as  to  such 
conduct  was  held  inadmissible.  The  acts  of  the  plaintiff,  which 
are  relied  upon  as  a  justification,  must  be  proved,  and,  upon  the 
evidence  given,  the  truth  or  falsity  of  the  charge  determined  by 
the  jury.  And  evidence  of  the  plaintiff's  conduct  towards  some 
other  person,  employed  by  liira  during  a  prior  season,  and  in  a 
previous  year,  is  inadmissible.^ 

§  28.  In  an  action  of  slander,  for  charging  the  plaintiff  with 
fornication  while  a  medical  student  in  the  city  of  New  York,  the 
defendant  having  attempted  to  prove  the  charge  to  be  true, 
evidence  is  not  competent  for  the  plaintiff  in  rebuttal,  "  that  he 
was  at  the  time  in  straitened  pecuniary  circumstances,  and  had 
hardly  the  means  of  supporting  himself."  "  Such  a  man  in  such 
a  place  might  readily  find  other  means  than  money,  which  would 
enable  him  to  commit  the  acts  charged."^ 

§  29.  In  an  action  of  slander,  where  the  general  issue  alone  is 
pleaded,  the  plaintiff  cannot  in  the  first  instance  give  evidence 
tending  to  prove  the  defendant's  knowledge  of  the  falsity  of  the 
words  spoken.  A  plaintiff  cannot  give  such  evidence,  except 
for  the  purpose  of  rebutting  the  defence.'* 

§  30.  Where  the  slander  imputes  larceny,  and  the  circum- 
stances of  the  alleged  larcenous  taking  referred  to  have  been 
proved  by  the  defendant,  the  plaintiff  may  show  in  rebuttal,  that, 
in  taking  the  propert}"^,  he  acted  upon  the  advice  of  counsel,  that 
he  had  a  legal  right  so  to  do.^ 

§  31.  If,  in  an  action  for  slander,  a  verdict  has  been  found  for 
the  defendant  on  the  ground  that  the  words  were  privileged  ; 
questions  arising  in  the  course  of  the  trial,  as  to  the  admission  or 
exclusion  of  evidence  in  reference  to  the  truth,  and  the  defence 
of  justification  on  that  ground,  are  immaterial.'^ 

§  32.  The  court  will  not  permit  the  plaintiff  to  exhibit  inter- 
rogatories to  the  defendant,  the  answer  to  which,  if  in  the  affirma- 

1  Pallet  V.  Sarpcnt,  36  N.  H.  496.  *  Hartranft  v.  Hcsser,  34  Pcnn.  117. 

2  ii>y  {..  Bennett,  3  Bosw.  200.  *  Gandv  v.  Humpliries.  85  Ala.  617. 

3  Orcutt  V.  Kanney,  10  Cush.  183-185.         ^  Lawler  v.  Earle,  6  Allen,  22. 


524  EVIDENCE.  [book   IV. 

tive,  would  tend  to  show  that  he  composed  or  published  the  libel, 
and  would  therefore  criminate  him.^ 

§  33.  It  is  doubted  whether,  in  an  action  for  malicious  prosecur- 
Hon,  the  defendant  can  be  asked,  in  chief,  if  he  had  any  other 
motive  in  view  than  to  further  the  ends  of  justice.''^ 

§  34,  In  case  for  malicious  prosecution,  the  plaintiff  must  prove 
the  prosecution,  acquittal,  want  of  probable  cause,  and  malice  of 
the  defendant.^ 

§  34  a.  In  an  action  by  A  against  B  for  malicious  prosecution, 
in  causing  A  to  be  arrested  on  a  criminal  charge,  on  which  A  was 
acquitted  by  the  jury,  without  leaving  their  seats  ;  after  evidence 
that  the  prosecution  was  malicious  and  without  probable  cause, 
the  defendant  cannot  ask  the  prosecuting  attorney,  **  On  what 
ground  was  the  plaintiff  acquitted?"* 

§  34  b.  In  an  action  for  bringing  a  malicious  suit,  evidence  is 
competent  of  the  plaintiff's  declarations  that  he  did  not  direct 
this  action  to  be  brought,  and  wished  to  stop  it.^ 

§  35.  The  waiving  of  an  examination  before  a  magistrate,  and 
giving  bail  for  appearance  at  court,  is  not  such  an  admission  of 
guilt  as  will  preclude  an  action  for  malicious  prosecution.^ 

§  86.  A  discharge  of  a  person  arrested,  by  the  prosecuting 
attorney,  is  the  usual  mode  of  terminating  a  prosecution,  iu 
Illinois.  A  bill  need  not  be  ignored,  before  he  may  maintain  an 
action  for  a  malicious  prosecution." 

§  36  a.  The  discharge,  by  an  examining  magistrate,  of  a  person 
accused  of  a  crime,  is  not  such  evidence  of  want  of  probable 
cause  as  will  maintain  an  action  for  malicious  prosecution.** 

§  37.  The  notes  of  a  magistrate,  taken  on  the  hearing  of  a 
criminal  charge,  and  never  read  to  or  signed  by  the  witness,  are 
not  a  deposition  ;  and  are  not  evidence  to  impeach  or  contradict 
such  party .^ 

§  38.  In  an  action  for  malicious  prosecution,  the  record  of  an 
action  of  replevin,  brought  by  the  plaintiff  for  the  property 
alleged  to  have  been  stolen,  is  not  competent  evidence.     It  was 

1  Tupling  V.  Ward,  6  H.  &  N.  749.  «  Sclioonover  v.  Myers,  28  Dl.  308. 

2  Hardwick  v.  Coleman,  1  F.  &  F.  531.  ■  lb. 

3  Rhodes  t'.  Silvers,  1  Har.  127.  8  Thorpe  v.  Ballvett,  25  111.  339. 

*  Tefft  V.  Windsor,  17  Mich.  486.  9  Sclioonover  v.  Myers,  28  ib.  308. 

5  Leach  v.  Wilbur,  9  AUeii,  212. 


CH.    IX.]  MALICIOUS   PROSECUTION.  525 

for  a  different  cause  of  action.  All  the  plaintiff  could  have 
recovered  in  that  suit  was  the  value  of  the  property  and  damages 
for  taking  it,  aggravated  perhaps  by  the  accompanying  circum- 
stances. He  could  have  recovered  nothing  for  the  personal 
injury.     This  is  an  action  for  a  personal  wrong.^ 

1  Scofield  V.  Ferrers,  47  Penu.  rj4. 


526  EVIDENCE.  [book  IT. 


CHAPTER   X. 

MISCELLANEOUS    INJURIES   TO   PROPERTY. 

1.  Watercourse.  9.  Conversion. 

2.  Way.  9  e.  Copyright. 
4.  Negligence,  Carrier.  Railroad,  iScc.                  10.  Patent. 

§  1.  In  an  action  against  a  city,  for  obstructing  a  culvert  for  a 
watercourse  under  a  highway,  the  burden  of  proof  is  upon  the 
plaintiff,  to  show  that  the  injury  was  caused  solely  by  the  defend- 
ant's negligence  in  not  removing  the  obstruction.  Upon  such 
proof,  and  in  the  absence  of  any  proof  of  neglect  or  want  of  care 
in  the  plaintiff  or  a  third  person,  contributing  to  the  obstruction, 
the  action  is  maintainable.^ 

§  1  a.  The  plaintiff  owned  a  mill  and  water-privilege,  subject 
to  a  right  in  the  defendant  to  take  from  the  flume  all  the  water 
necessary  for  his  mill  below.  In  an  action  for  diversion  of  the 
water,  by  taking  more  than  the  defendant  was  entitled  to,  the 
plaintiff  alleged,  that  he  had  a  right  to  ^flow  of  the  loater  in  great 
abundance  and  plenty  to  his  mill.  Held,  that  this  was  not  descrip- 
tiue  of  his  right,  and  therefore  proof  of  the  limited  right  which  he 
held  was  not  a  variance ;  also,  that  the  taking,  by  the  defendant, 
of  more  water  than  was  necessary  for  his  mill,  was  a  diversion  of 
the  water  of  the  plaintiff;  also,  that  under  the  allegation,  that 
the  defendant  had  diverted  the  water  and  prevented  it  from  flow- 
ing to  the  plaintiff's  mill,  the  plaintiff  might  show  that  the 
trough,  by  which  tlie  defendant  conveyed  the  water  from  the 
flume  to  his  mill,  was  leaky,  in  consequence  of  which  much  water 
was  wasted,  and  that  his  water-wheel  was  out  of  repair,  and 
required  more  water  to  move  it  than  if  it  was  in  a  proper  con- 
dition.''^ 

§  1  6.  Where  B.  obstructed  the  waters  of  a  brook,  so  that  they 
flowed  upon  the  land  of  the  plaintiff,  and  the  defendants  P.  and  M. 

1  Parker  v.  Lowell,  11  Gray,  353.    See         2  Wier  v.  Covell,  29  Conn.  197. 
Union,  &c.  v.  Crary,  25  Cal.  607. 


CH.    X,]  MISCELLANEOUS  INJURIES  TO   PROPERTY.  627 

afterwards  purchased  B.'s  land,  and  maintained  the  obstruction ; 
held,  P.'s  admissions  as  to  the  injury  to  the  land  from  the  over- 
flow of  water  upon  it,  made  a  number  of  years  before  P.  pur- 
chased an  interest  in  B.'s  land,  were  admissible  against  him.^ 

§  1  c.  An  action  for  obstructing  the  free  course  and  use  of 
water,  &c.,  based  only  on  prescriptive  right,  is  not  sustained  by 
proof  that  both  parties  had  a  right  to  erect  a  mill  on  the  stream, 
although  the  plaintiff  was  the  prior  occupant,  and  the  defendant 
in  repairing  his  dam  has  raised  the  water  eighteen  inches,  there- 
by impeding  the  motion  of  the  plaintiff's  wheels,  three  miles 
above.2 

§  1  c?.  Upon  a  question  of  damages  from  back-flowage,  evi- 
dence of  damages  paid  within  three  years  for  flowage  of  the  land 
opposite,  and  on  about  the  same  level,  is  inadmissible."^ 

§  2.  Evidence  that,  since  the  commencement  of  an  action 
against  the  owner  of  land  for  obstructing  a  way  claimed  over  it 
by  prescription  in  a  definite  line,  the  plaintiff  broke  down  the 
defendant's  wall  and  crossed  the  land  in  another  direction  ;  is 
inadmissible  for  the  defendant.^ 

§  3.  A  refusal  to  instruct  the  jury,  that  the  closing  of  a  way 
claimed  by  prescription,  by  agreement  of  the  claimant  of  the  way 
with  the  owner  of  the  land  over  which  it  is  claimed,  and  the  sub- 
sequent use  of  a  new  way  instead,  may  be  deemed  evidence  that 
it  was  a  way  of  necessity,  shifting  at  the  pleasure  of  the  owner 
of  the  land;  is  no  ground  of  exception,  especially  if  the  jury  are 
correctly  instructed  as  to  the  nature  of  ways  of  prescription  and 
of  necessity.^ 

§  4.  In  an  action  against  a  common  carrier  for  failure  to  stop 
according  to  previous  notice,  at  a  time  specified,  at  A,  and  take 
the  plaintiff  on  his  vessel  as  passenger,  which  failure  occasioned 
great  bodily  exposure  and  mental  suffering;  the  peculiar  bodily 
condition  of  the  plaintiff  may  be  proved  in  aggravation  of  dam- 
ages.^ 

§  5.  Where  a  passenger  applied  to  the  agent  of  a  railroad  for  a 
ticket,  who  gave  him  a  certificate  that  the  tickets  "  were  all  out," 
which  he  showed  to  the  conductor ;  the  testimony  of  the  agent  is 

1  Pollv  ".  McCall,  37  Ala.  20.  *  Smith  i-.  Lee,  14  Gray,  473. 

2  Rudd  r.  Williams.  -13  HI.  385.  »  Ih. 

3  Kelliher  v.  Miller,  'J7  Mass.  71.  «  lleirn  v.  McCaugban,  32  Misa.  17. 


528  EVIDENCE.  [book   IV. 

competent,  to  show  that  the  passenger  apph'ed  for  a  ticket,  and 
the  certificate,  to  show  that  the  conductor  knew  that  the  fault  of 
the  passenger's  not  having  a  ticket  lay  with  the  company  and 
not  with  the  passenger.^ 

§  6.  In  an  action  for  lost  baggage,  the  fact  that  the  plaintiff 
was  a  passenger  may  be  proved,  without  an  av^erment,  by  the 
possession  of  a  baggage  check  and  ticket;  and  by  the  check 
alone,  if  it  appears  that  such  cliecks  are  not  given  until  the  pas- 
senger-tickets are  shown.^ 

§  7.  In  an  action  on  a  bill  of  lading  for  non-delivery  of  goods, 
alleged  to  be  lost  by  the  defendant's  negligence ;  tiiere  being  no 
evidence  that  the  loss  could  have  been  prevented  if  the  collision 
which  caused  it  occurred,  the  proper  question  for  the  jury  is, 
whether  the  collision  was  caused  by  negligence.^ 

§  7  a.  In  an  action  against  a  carrier  by  boat,  for  the  value  of  a 
trunk,  for  which  a  through  check  had  been  given  ;  a  witness, 
being  a  clerk  on  one  of  the  defendant's  boats,  was  offered,  to  prove 
that  the  trunk  had  been  delivered  over  to  the  next  carrier,  who 
testified  that  it  was  the  custom  of  the  company  to  bring  back  to 
the  ofiice  a  trunk  that  had  not  been  delivered  to  the  next  carrier ; 
that  he  knew  of  no  such  occurrence  at  the  time  the  plaintiff 
shipped  as  passenger ;  that  the  baggage  agent  made  lists  of  the 
through  baggage,  delivered  by  them  to  the  next  carrier,  and  that 
these  lists  were  not  preserved.  Held,  the  evidence  was  legally 
insufiicient  for  the  purpose  for  which  it  was  offered."* 

§  8.  In  an  action  for  injury  caused  by  the  negligence  of  per- 
sons  having  charge  of  a  ship  at  a  public  dock,  under  the  care  of  a 
ship-keeper ;  there  being  no  evidence  by  whom  the  keeper  was 
appointed,  held,  the  jury  might  infer  from  the  ship's  register, 
bearing  the  defendant's  name  as  owner,  that  he  employed  the 
negligent  parties.^ 

§  9.  In  an  action  to  recover  the  value  of  leather  delivered  to 
the  defendant  to  be  made  into  shoes,  the  plaintiff  alleging  con- 
version of  a  portion  of  the  leather,  and  the  defendant  that  it  had 

1  St.  Louis,  &c.  V.  Dalby,  19  111.  353.  *  Baltimore  v.  Smith,  23  Md.  402. 

2  111.  Cent.  &c.  V.  Copeland,  24  ib.  332.  &  Hibbs    v.    Eoss,  Law   Eep.   1   Q.  B. 
s  Grill   V.    General,    &c.   Law   Rep.  1     534;  Amn.  Law  Rev.,  Jan.  1867,  p.  315. 

C.  P.  600;  Amn.  L.  Rev.,  Jan.   1867,  p. 
288. 


CH.    X.]  MISCELLANEOUS   INJURIES   TO    PROPERTY.  529 

all  been  returned  in  the  shoes  manufactured:  some  of  the  defend- 
ant's witnesses  having  descril)ed  leather  which  tlicy  supposed 
had  been  received  by  the  defendant  of  the  plaintiff,  the  defendant 
cannot  ask  another  witness,  called  as  an  expert,  how  much  leather, 
such  as  was  described  by  the  above  witnesses,  it  would  take,  to 
make  a  certain  number  of  pairs  of  shoes;  it  not  appearing  that 
the  witness  had  the  means  of  forming  the  opinion  desired. ^ 

§  9  a.  If  goods,  alleged  to  have  been  converted,  have  been 
mixed  by  a  mortgagee  with  other  similar  goods,  which  the 
defendant,  as  mortgagee,  had  a  right  to  retain  under  his  mort- 
gage, and  it  is  left  for  the  jury  to  determine  whether  or  not  he 
had  means  for  making  a  discrimination,  which  the  other  party  had 
not ;  evidence  of  a  general  demand  by  the  plaintiff  for  the  goods 
mortgaged,  and  of  a  reply  by  the  defendant,  that  "  he  was  sorry 
he  could  not  acct)mmodate  him,  and  that  he  had  been  expecting 
this  demand  for  some  days,"  is  competent  to  be  submitted  to  the 
jury,  with  the  other  testimony,  to  show  a  conversion.  But  if  all 
the  goods  so  intermixed  have  been  sold  by  the  defendant,  no 
proof  of  demand  is  necessary .^ 

§  9  &.  In  trover  by  the  mortgagee  of  a  chattel,  the  plaintiff  may 
give  in  evidence  a  prior  mortgage  assigned  to  him,  to  which  his 
mortgage  is  expressly  made  subject,  although  such  prior  mort- 
gage does  not  specifically  mention  the  chattel.^ 

§  9  c.  If  the  plaintiff  in  trover  proves  title  in  himself  as  mort- 
gagee, evidence  of  a  subsequent  sale  from  the  mortgagor  to  the 
defendant  is  immaterial,  and  its  rejection  no  ground  of  excep- 
tion.* 

§  9  d.  In  trover  by  the  mortgagee  of  a  chattel,  the  defendant, 
although  he  has  not  pleaded  title,  may  show  that  the  mortgage 
was  made  without  consideration,  and  that  the  mortgagor  after- 
wards sold  some  of  the  property  with  the  knowledge  of  the 
plaintiff.^ 

§  9  e.  In  an  action  for  infringing  the  copyright  of  a  play,  it  is 
not  competent,  in  order  to  show  that  the  play  is  not  original,  but 
dramatized  from  a  book,  to  ask  a  witness,  whether  the  incidents 
contained  in  that  book  are  the   same   as  those  in  the  play,  or 

1  Eich  V.  Jones,  9  Cush.  320.  *  Clark  v.  Houghton,  12  Gray,  38. 

'  Simpson  r.  Carleton,  1  Allen,  109.  5  lb. 

3  Clark  V.  Houghton,  12  Gray,  38. 

34 


530  EVIDENCE.  [book   IY. 

whether  he  could  state  from  recollection  any  passages  in  the 
book  which  were  similar  to  those  in  the  play,  or,  giving  him  the 
book,  to  ask  him  whether  the  scenery,  incidents,  and  language 
were  not  substantially  the  same  as  those  of  the  play.^ 

§  10.  In  an  action  for  infringment  of  a  patent,  for  which  there 
is  no  established  patent  or  license  fee,  the  value  of  the  thing  used 
may  be  determined  by  all  the  evidence  as  to  its  character,  opera- 
tion, and  effect.^ 

§  11.  On  the  trial  of  issues  in  a  patent  case,  if  the  defendant 
set  up  a  prior  user,  the  plaintiff  may  offer  rebutting  evidence. 
But,  after  the  defendant's  evidence  has  been  summed  up,  he  can- 
not offer  further  evidence  in  answer  to  the  plaintiff's  evidence  in 
reply.3 

1  Boucicault  v.  Fox,  SBlatclif.  C.  C.  87.  "•'  Penn.  v.  Jack,  Eng.  Law  Eep.  2  Eq. 

2  The  Suffolk  Co.  v.  Hay  den,  3  Wall.     314 ;  Amn.  Law  Eev.,  Jan.  1867,  p.  309. 
315. 


CH.    XI.]  PUBLIC    OFFICERS.  531 


CHAPTER   XL 

EVIDENCE   IN    ACTIONS   RELATING    TO    PUBLIC    OFFICERS. 

1.  Evidence  of  beinp;  reputed  and  acting         14.  Declarations  and  admissions, 
as  an  officer;  act  of  de|iuty.  21.  Records,  writs,  executions,  &c. 

4.  Presuinf)tion    and  burden  of  proof  in         24.  Miscellaneous  cases, 
case  of  officers. 

7.  Return  of  an  officer,  and  evidence  re- 
lating thereto. 

§  1.  The  record  of  a  magistrate,  acting  judicially,  and  within 
his  jurisdiction,  in  a  criminal  case,  cannot  be  impeached  for 
falsity,  and  parol  evidence  tending  to  contradict  the  record  is 
inadmissible.^ 

§  1  a.  Proof  that  an  individual  is  reputed  to  be,  and  has  notori- 
ously acted  as,  a  public  officer,  is  prim/i  facie  evidence  of  his 
official  character.  This  exception  to  the  general  rule,  requiring 
the  best  evidence,  is  founded  upon  the  strong  presumption  which 
arises  from  the  exercise  of  a  public  office,  that  the  appointment 
to  it  is  valid;  and  upon  the  general  inconvenience  of  requiring 
full  and  strict  proof  of  the  appointment  or  election  of  public 
officers.^ 

§  2.  In  an  action  against  a  person,  for  an  act  which  he  had  no 
right  to  do  unless  he  were  an  officer,  he  must  show  that  he  was 
primd  facie  an  officer  de  Jure.  Proof  of  acting  as  such  under 
color  of  authority,  and  of  reputation,  is  admissible  evidence  for 
that  purpose ;  and  is  sufficient,  in  a  collateral  proceeding,  to 
establish  that  character.  The  uniform  practice  has  been,  where 
officers  have  been  sued  for  their  official  acts,  and  have  sought  to 
justify  as  such,  to  admit  proof  of  their  reputation  and  action  as 
officers.'^ 

§  3.  But,  in  an  action  against  a  sheriff  for  the  misconduct  of 
his  bailiff,  the  plaintiff  must  prove  the  original  warrant  of  execu- 

1  Kelley  v.  Dresser,  11  Allen,  31.  See  Brifrfrs  v.  Taylor,  o5  Yerm.  57.     (In 

2  1  Grecnl.  Ev.  158,  §  83;  ib.  1G8,  §§  this  case  the  subject  was  very  elaborately 
91,  92.  discussed,  and  tlie  court  were  not  unau- 

3  Colton   I'.  Beardsley,   38  Barb.   29.  imous  in  their  opinion.)    , 


632  EVIDENCE.  [book   IV. 

tion  from  tlic  former  to  tlic  latter.  It  is  not  sufficient  to  prove 
official  acts  of  the  bailifl',  he  not  being  a  general  officer  of  the 
defendant.^  ''  The  under-sheriff  is  the  general  deputy  of  the  high- 
sheriff  for  all  purposes  ;  but  this  is  not  the  case  with  the  bailifl"." - 
"  The  bailiff"  gives  a  bond  to  execute  such  warrants  as  shall  be 
directed  to  him  ;  when  a  warrant  is  granted  to  him,  he  becomes 
the  special  officer  of  the  sheriff.  ...  It  did  not  appear  that  the 
sheriff' had  granted  any  warrant  to  this  officer."  ^ 

§  3  a.  An  action  of  trespass  against  a  sheriff,  in  which  he  is 
directly  charged,  will  be  supported  by  proof  that  the  alleged 
trespass  was  committed  by  one  acting  as  his  deputy,  for  whose 
misfeasance  he  is  by  law  answerable,  although  there  is  no  such 
averment  in  the  writ.  And  evidence  that  the  trespasser  was 
the  deputy  of  the  defendant,  in  connection  with  the  defendant's 
brief  statement  justifying  the  act,  makes  out  a  prima  facie  case 
for  the  plaintiff.* 

§  4.  While  an  officer  de  facio  is  in  many  cases  presumed  to 
be  such  dejure;  by  an  extension  of  the  same  principle,  the  doings 
of  an  officer  are  presumed  to  be  conformable  to  law,  and  the  bur- 
den of  proof  is  on  the  party  alleging  the  contrary.^ 

§  5.  In  an  action  for  neglecting  to  attach  propert}^,  the  burden 
is  upon  the  plaintiff"  to  prove  that  it  was  attachable,  although  the 
defendant  claims  it  by  purchase  from,  the  debtor.^  So  where  the 
sheriff's  return,  and  the  deed  made  by  him  to  a  purchaser,  set 
forth  notice  of  seizure  ;  the  burden  of  proof  rests  on  the  party 
attacking  the  sale,  to  show  the  falsity  of  such  recitals,  although  it 
involves  the  proof  of  a  negative."  So  in  trover,  for  levying  on  a 
tool  protected  by  an  exemption  act,  the  onus  is  on  the  plaintiff  to 
prove  that  the  value  of  all  his  tools,  &c.,  including  tlie  one  in 
question,  did  not  exceed  the  sum  exempted.^  So  the  presump- 
tion is,  that  a  sheriff",  who  sells  property  on  execution,  has  done 
his  duty  in  previously  making  a  levy,  and  the  fact  will  be  deemed 
admitted,  if  no  objection  is  made  at  the  trial.^  So,  wdiere  the  law 
requires  a  sheriff'  to  appraise  property  taken  and  sold  on  execu- 

1  Drake  v.  Sykes,  7  T.  R.  113  5  But  see  Keane  v.  Cannovan,  21  Cal. 

^  Per  Ld.  Kenyon,  C.  J.,  ib.  116.  291.     Also,  c.  1,  §  11. 

3  Per    Lawrence,    J.,   ib.    117.       See  ^  Phelps  v.  Cutter,  4  Gray,  137. 

Yabsley    v.   Doble,   1  Ld.  Ray.   190    (a  T  Morse  u.  McCall,  13  La."  An.  215. 

case,  upon   tlie   authority   of  which   the  ^  Chambers  v.  Halsted,   Hill  &  Denio, 

court  seriously  doubted,  before  deciding  384. 
as  stated  in  the  text).  9  Smith  v.  Hill,  22  Barb.  656. 

*  Pratt  V.  Bunker,  45  Maine,  569. 


CH.    XI.]  PUBLIC   OFFICERS.  533 

tion,  it  is  not  iiicnmbciit  on  one  claiming  title  under  sucli  sale  to 
show  that  such  appraisement  was  made.  In  the  absence  of 
proof,  the  sheriff  will  be  presumed  to  have  done  his  duty.^ 

§  6.  But  the  general  rule  of  presumption  and  the  burden  of 
proof  may  be  changed  l)y  circumstances.  Thus,  where  a  siieriff 
is  shown  to  be  guilty  of  negligence  in  failing  to  serve  a  writ,  the 
onus  of  showing  that  the  defendant  in  the  writ  was  insolvent 
devolves  on  him.''^  So,  in  a  suit  by  the  original  ]ihiiiitiif  in 
replevin  for  the  sheriif's  negligence  in  the  custody  of  the  prop- 
erty, no  proof  of  title  need  be  made,  where  it  does  not  appear  that 
any  other  person  has  made  a  claim  of  title. '^ 

§  7.  The  return  of  a  sworn  officer,  in  reference  to  facts  which 
the  law  requires  him  to  state,  and  as  between  the  parties  and 
privies  to  the  suit,  and  others  whose  rights  are  necessarily 
dependent  ui)on  it,  is  conclusive,  till  vacated  or  set  aside  in  due 
course  of  law.  As  to  all  others,  it  is  only  primd  facie  evi- 
dence. Privies  are  those  who  might  maintain  an  action  for  false 
return.  I>nt,  in  a  suit  by  a  purchaser  of  property  against  an 
attaching  creditor  and  olHcer,  for  attaching  the  propert}'  upon  an 
order  against  the  seller,  though  on  the  ground  of  fraud  in  the 
sale  ;  the  ofKcer's  return  is  open  to  contradiction  by  the  plaintiff'^ 

§  8.  In  an  action  against  an  officer  for  the  conversion  of  pi'op- 
erty  attached  by  him  on  a  writ  against  a  third  person,  his  return 
upon  the  writ,  showing  a  sale  of  the  property  under  the  statutes 
as  perishable,  the  certificate  of  the  appraisers,  and  a  schedule 
of  prices  received  for  the  property  at  the  auction  sale,  which 
were  annexed  to  the  return  as  a  part  thereof;  are  competent  evi- 
dence against  him,  on  the  question  of  damages.^  So  in  an  action 
against  an  officer,  for  not  maintaining  possession  of  personal  prop- 
erty, which  he  has  returned  as  attached  upon  a  writ;  his  return 
is  evidence  of  possession,  tliat  will  render  him  liable,  if  the  case 
discloses  nothintr  to  show  that  such  return  was  made  under  mis- 


1  Mercer  v.  Doe,  6  Iiid.  80.  ajjainst  injury  or  loss  ;  but  to  wli.-it  precise 

2  Murpliy  ?\  'rrontinan,  5  .Tones,  379.  deforce    of  care    lie    is   hoiiiul   iiinler  tlie 
•*  Moore    I'.    Westervc'lt,    '2.\    N.    Y.   (7  various  circimistanct's  wliicli  may  attend 

Sniitli)  10;).     In  tliis  case,  the  important  sticli   a  takint,^  is  not  very  well    settled." 

question  arose  as   to   llie  dejrree  of  care  I'er  Selden,  .!.,  21  N.  Y.  105.     See  Storj-, 

required  from  an  officer  in  tlie  keeping  Bailm.  §  l;30;  Jenner  r.  Jolifle,  6  John. 

of   property.     The    court    remark:    "A  'J;   IJiirke  ;•.  Trevitt,  1  Mass.  ".Itj. 
siieriff,  marshal,   or  other  officer   of  like  •»  I'iiillips  v.  Klwell,  14  Ohio  St.  240.  > 

character,  wlio  takes  jjropcrty  hy   virtue  ^  Sanborn  v.  liakcr,  1  Allen.  ')2G.    But 

of  lethal  ])rocess.  is  under  some  oliliyatinu  see  Bailey  v.  Capelle,  1  liar.  44'.t. 
to  see  to  the  protection  of  such  property 


534  EVIDENCE.  [book   IV. 

apprehension,  and  the  creditor  in  the  suit  omits  no  duty  required 
on  his  part  to  fix  the  liability  of  the  officer.^ 

§  9.  In  an  action  by  an  execution  creditor  against  a  sheriff  for 
false  return ;  the  defendant  having  set  up  title  in  the  assignees  of 
the  debtor  under  a  bill  of  sale,  with  delivery,  prior  to  the  levy, 
evidence  is  admissible  of  an  indebtedness  of  the  debtor  as  a  con- 
sideration of  the  sale,  but  only  upon  the  question  whether  the 
sale  was  fraudulent  in  fact.  If  there  were  no  indebtedness,  the 
sale  was  a  fraud  in  fact.  Otherwise,  and  in  case  of  a  secret  trust 
for  the  debtor,  though  valid  between  the  parties,  it  was  a  fraud 
in  law,  and  void  against  creditors.  The  plaintiff  may  also  offer 
rebutting  evidence  that  there  was  no  indebtedness.^  So  it  is  held 
that  an  officer  may  explain  his  return. ^  And  where  an  officer's 
return  showed  a  levy  on  a  wagon,  but  no  disposition  thereof;  and 
the  plaintiff  charged  him  with  negligently  permitting  it  to  be 
stolen  :  held,  the  officer,  having  joined  issue  on  this  charge,  might 
introduce  proof  that  it  was  stolen  from  his  bailee.*  So,  in  defence 
of  an  action  against  a  sheriff  by  a  stockholder  of  a  manufacturing 
corporation,  for  arresting  him  on  an  execution  against  the  cor- 
poration ;  it  may  be  shown  that  he  was  a  stockholder,  although 
the  return  on  the  execution  states  that  he  was  arrested  as  "  now 
or  formerly  an  officer  of  the  within  named  corporation."^ 

§  10.  In  a  summary  proceeding  against  a  sheriff  for  non-return 
of  a  summons,  the  inquiry  is  confined  to  the  face  of  the  return. 
Extrinsic  evidence  is  not  admissible.^ 

§  11.  In  general,  evidence  is  not  admissible  to  contradict  a 
return.''  Thus  the  sheriff's  return  of  service  cannot  be  contra- 
dicted, except  for  fraud  or  collusion.^  So  the  officer  cannot  be  a 
witness  to  falsify  his  return.^  Thus  an  officer,  who  had  returned 
on  an  execution  the  taking  of  a  yoke  of  oxen  and  a  yoke,  cannot 
be  permitted  to  testify,  on  a  trial  in  trespass,  that  he  did  not  take 
the  yoke ;  though  he  may  be  permitted  to  amend  his  return 
according  to  the  facts. ^^ 

§  12.  One  who  claims  by  virtue  of  a  sale  on  execution  may 
show  that  the  sale  was  made  in  a  different  manner  from  that 

1  Wetherell  v.  Hughes,  45  Maine,  61.  ■?  Johnson  v.  Stone,  40  N.  H.  197. 

2  Connelly  v.  Walker,  45  Penn.  450.  8  Tillman    v.    Davis,    '28    Geo.    494  ; 

3  Langdon  v.  Summers,  10  Ohio  (N.  Brown  (-•.  Way,  ib.  531 ;  Wilson  y.  Spring, 
S.),  77.  &c.,  ib.  445. 

4  Harper  v.  Moffit,  11  Iowa,  527.  »  Eastman  v.  Bennett,  6  Wis.  232. 

5  Richmond  v.  Willis,  18  Gray,  182.  W  Johnson   v.    Stone,   40    N.  H.    197 ; 

6  Hill  V.  Hinton,  2  Head,  124.  Hatch  v.  Bartle,  45  Penn.  166. 


CH.    XI.]  PUBLIC   OFFICERS.  535 

stated  in  the  officer's  return. ^  So  as  between  the  purchaser  at  a 
sheriff's  sale,  and  one  who  claims  as  mortgagee,  the  sheriff's 
return  on  the  execution  is  not  conclusive  as  to  the  time  of  the 
levy,  but  such  mortgagee  has  a  right  to  show  that  the  levy  was 
not  made  till  after  the  time  stated  in  the  return,  and  after  his 
right,  as  mortgagee,  accrued.  Such  evidence  would  show,  that 
there  was  no  privity  between  the  mortgagee  and  the  judgment 
debtor,  and  that  the  sheriff  had  no  right  to  make  a  return  affect- 
ing the  mortgagee  or  the  property.  And  where  a  purchaser, 
knowing  of  a  mortgage,  colludes  with  the  sheriff,  and  procures 
from  him  a  false  return  of  a  levy  before  the  giving  of  the  mort- 
gage, and  purchases  on  condition  that  such  false  return  shall  be 
made  in  a  suit  between  the  mortgagee  and  the  purchaser ;  this 
fraudulent  collusion  may  be  shown,  and  any  effect  of  the  return 
on  the  rights  of  the  mortgagee  defeated  thereby .^ 

§  13.  In  a  suit  brought  to  quiet  title,  the  complainant  cannot, 
to  defeat  the  defendant's  title  made  under  a  sheriff's  sale,  and  to 
show  that  the  defendant  had  notice  of  his  (the  complainant's) 
rights,  offer  in  evidence  a  notice  to  the  sheriff  of  his  rights  under 
a  deed,  and  an  endorsement  thereon  by  the  sheriff,  that  he  had 
read  the  notice  at  the  sale ;  it  being  no  part  of  an  officer's  duty 
to  read  the  notice  or  make  such  return.^ 

§  14.  The  declarations  of  the  person,  in  whose  hands  property 
is  attached  as  belonging  to  him,  respecting  his  ownership,  are 
evidence  for  the  defendant,  in  a  suit  by  a  third  party,  claiming 
the  property,  against  the  sheriff,* 

§  15.  Declarations  by  an  execution  defendant,  before  levy,  are 
admissible  to  disprove  property  in  the  sheriff  after  levy.^ 

§  16.  In  trover  against  a  sheriff,  for  levying  an  attachment 
against  a  partnership  on  goods  claimed  by  the  plaintiff,  under  a 
purchase  from  one  of  the  partners,  individually,  the  declarations 
of  the  others,  that  they  had  sold  out  to  him,  are  mere  hearsay, 
and  therefore  incompetent  evidence.'' 

§  17.  The  admissions  of  one  in  possession  of  property,  against 
his  title,  are  admissible  against  an  officer  who  has  subsequently 
attached  and  taken  possession  of  the  property  as  his,  in  a  suit 
brought  against  the  officer  to  try  the  title,  by  one  claiming  ad- 

1  Drake  v.  IMooney,  81  Vt.  617.  *  Ross  v.  Havne,  3  Iowa,  211. 

2  Nail  V.  Granger,  8  Mieh.  450.  5  King  v.  Wilkins,  11  Iiid.  347. 

3  Wickersliam    v.   Reeves,    1    Clarke  '^  Hartshorn  v.  Williams,  31  Ala.  140. 
(Iowa),  413. 


536  EVIDENCE.  [book   IV. 

versely  both  to  the  officer  and  the  person  who  has  made  such 
admissions.^ 

§  17  a.  On  a  statutory  trial  of  the  right  of  property  in  an 
attached  stock  of  goods,  the  declarations  and  conduct  of  the 
defendants  in  attachment  subsequent  to  the  transfer  to  the  claim- 
ant and  the  levy,  and  not  accompanying,  qualifying,  or  explain- 
ing any  material  fact  in  the  case,  are  not  admissible  in  evidence.^ 
But  evidence  of  a  witness,  who  testified  that  he  was  called  in  to 
take  an  account  of  the  stock,  and  to  a  conversation  at  the  time 
between  the  defendants  and  the  claimant,  that  the  stock  was  to 
be  taken  for  the  purpose  of  turning  it  over  to  tlie  claimant  to 
satisfy  a  debt,  is  admissible,  as  tending  to  establish  a  sale  to  the 
claimant. 

§  17  b.  When  goods  have  been  attached  by  A  as  the  property 
of  B,  and  C  has  interposed  a  claim  to  them,  and  has  executed  a 
claim  bond,  which  recites  the  levy  and  the  interposition  of  the 
claim,  and  an  action  has  been  brought  to  try  the  right  of  property 
between  A  and  C  ;  the  bond  is  evidence  for  A,  of  the  levy. 
And  if  a  witness  testifies,  that,  on  the  day  on  which  the  attach- 
ment is  dated,  he  saw  the  officer  (he  having  since  died)  levy 
an  attachment  against  the  defendants  in  favor  of  the  plaintiff,  the 
attachment  and  levy  may  be  read,  although  not  in  the  hand- 
writing of  the  officer." 

§  18.  Inquiry  made  by  a  creditor,  of  a  claimant  of  property 
alleged  to  be  transferred  to  such  claimant  in  fraud  of  creditors, 
relative  to  the  claimant's  business  standing,  and  his  reference  to 
the  business  men  of  the  place  where  he  had  formerly  done  busi- 
ness, do  not  make  them  agents  with  authority  to  speak,  nor  their 
declarations  evidence  in  favor  of  an  officer  who  afterwards  attached 
the  property  on  a  suit  by  the  creditors.* 

§  19.  In  an  action  of  trespass  by  a  father  against  an  officer,  for 
seizing  and  selling  property  as  belonging  to  his  son,  the  defendant 
offered  evidence  of  the  plaintiff's  declarations  that  the  property 
belonged  to  the  son.  Held,  it  was  competent  for  the  plaintiff  to 
prove,  in  rebuttal,  that  prior  to  the  execution  the  plaintiff  had 
turned  out  to  the  sherifi'  the  same  property,  in  the  son's  presence, 
upon  an  execution  against  the  plaintiff  himself.^ 

1  HaywarJ,  &c.  v.  Duncklee,  30  Verm.  3  Mayer  v.  Clark,  40  Ala.  259. 

29.  4  Kosenbury  v.  Angell,  6  Mich.  508. 

-  PuUiara  v.  Newberry's,  41  Ala.  168.  5  Roberts  v.  Young,  42  Penn.  439. 


CH.    XI.]  PUBLIC    OFFICERS,  587 

§  20.  "  The  admissions  of  an  under-sherifT  are  not  evidence 
against  the  sheriff,  unless  they  tend  to  charge  himself,  he  being 
the  real  party  in  the  cause.  He  is  not  regarded  as  the  jzeneral 
oflScer  of  the  sheriff,  to  all  intents;  ^  though  the  admissibility  of 
his  declarations  has  sometimes  been  placed  on  that  ground.'^  At 
otiier  times  they  have  been  received  on  the  ground,  that,  being 
liable  over  to  the  sheiiif,  he  is  the  real  party  to  the  suit."^  And 
where  the  sheriff  has  taken  a  general  bond  of  indemnity  from  the 
under-ofificer,  and  has  given  him  notice  of  the  pendency  of  the 
suit,  and  required  him  to  defend  it;  the  latter  is  in  fact  the  real 
party  in  interest,  whenever  the  sheriff  is  sued  for  his  default,  and 
his  admissions  are  clearly  receivable,  on  principle,  when  made 
against  himself.  It  has  elsewhere  been  said  that  the  declarations 
of  an  under-sheriff  are  evidence  to  charge  the  sheriff,  only  where 
his  acts  might  be  given  in  evidence  to  charge  him  ;  and  they 
rather  as  acts,  than  as  deciai-ations,  the  declarations  being  con- 
sidered as  part  of  the  res  [/estce."  * 

§  21.  In  an  action  against  an  officer  for  serving  an  attachment, 
the  record  of  that  attachment  is  competent  evidence  for  him.^ 

§  22.  To  admit  an  execution  in  evidence,  the  judgment  must 
be  produced,'^  except  in  a  few  particular  cases.'' 

§  23.  In  trespass  against  a  sheriff,  he  cannot  show  that  the  title 
was  not  in  the  plaintiff,  because  acquired  by  a  fraudulent  sale 
from  an  execution  defendant,  without  first  alleging  and  proving 
his  execution  and  justifying  under  it.^ 

§  24.  In  an  action  against  the  sheriff  for  not  paying  over  money 
collected  on  execution,  the  defendant  marked  the  case  "  not  for 
the  jui-y,"  and  asked  a  continuance,  which  was  refused,  and  judg- 
ment entered  for  the  plaintiff,  and  the  case  continned  for  assess- 
ment of  damages.  Held,  upon  the  trial  on  this  issue,  the  plaintiff's 
right  to  recover  was  establisiied  by  the  judgment,  and,  u|)on 
proof  by  him  that  the  sherifi'  had  collected  and  not  paid  over  the 
amount  of  the  execution,  he  was  entitled  to  recover  that  sum.'^ 

§  25.  In  an  action  by  the  execution  debtor  against  an  officer, 
to  recover  the   balance  of  proceeds  of  sale   after  satisfying  the 

1  Snowball  v.   Goodricke,  4  B.  &  Ad.  5  Sneed  v.  Wopman,  23  Mis.  263. 
541.  «  Tin.lall  r.  Miirpliv,  1  Hemp.  21. 

2  Drake  v.  Sykes,  7  T.  U.  ll.'i.  "'  ran)i)l)ell  r.  Strong,  il)  2r..j. 

3  Yab.sley  v.  Doble,  1  Ld.  Unvm.  I'.lO.  8  Beaty  v.  Swnrtliout,  32  IJarh.  203. 

4  AVlicder  L-.  Iliimbrigiit,  9S.'&R.3%;  «  Bradley  v.  Cliauibcrlain,  31  Verm. 
1  Greenl.  Ev.  283,  n.  3.  468. 


538  EVIDENCE.  [book   IV. 

execution,  a  bill  of  sale  from  the  debtor  to  a  third  person,  who 
had  recovered  against  the  officer  in  an  action  for  wrongfully  levy- 
ing on  the  property,  is  competent  evidence.^ 

§  26.  A  purchaser  of  logs  at  a  sheriff's  sale,  valid  as  to  part 
only,  must,  in  order  to  maintain  trover,  identify  these  logs.^ 

§  27.  In  an  action  against  an  officer  for  levying  an  execution, 
against  a  former  owner  of  a  saw-mill  improvement  erected  upon 
leased  land,  upon  a  part  of  the  machinery :  the  vendor  of  such 
improvement,  by  assignment  and  quitclaim  indorsed  on  the  lease, 
without  warranty,  is  a  competent  witness  for  the  plaintiff,  because, 
if  the  machinery  was  a  fixture,  it  passed  by  the  assignment  with- 
out warranty ;  if  detached,  and  personalty,  it  was  not  included  in 
the  assignment,  and  there  was  no  implied  warranty.^ 

§  28.  In  an  action  for  neglect  to  serve  a  writ,  the  plaintiff  must 
prove  a  cause  of  action  against  the  defendant  in  such  ^yrit,  which 
he  may  do  by  the  same  evidence  as  in  the  action  itself;^  as  by 
the  debtor's  admission.^  Evidence  must  be  given  of  ability  to 
serve  the  writ ;  as,  of  notice  that  the  party  was  within  the  officer's 
precinct,  and  might  have  been  arrested  ;  or  that  he  had  attachable 
property  in  his  possession.^ 

§  29.  In  an  action  for  failure  to  seize  goods,  the  officer  may 
show  that  they  did  not  belong  to  the  debtor,  or  reasonable  doubt 
as  to  the  title,  and  that  the  plaintiff  refused  to  indemnify  him." 
In  case  of  an  execution,  he  may  show  that  the  judgment  was 
fraudulent,  and  that  he  held  the  process  of  another  judgment 
creditor,^  or  prior  attachments  to  the  full  value  of  the  goods.^ 
But  where  an  officer  levies  on  goods,  and  leaves  them  with  a 
receiptor,  who  rightly  claims  to  own  them,  and  against  whom, 
upon  his  retaining  them,  the  officer  recovers  a  judgment  for  their 
value  ;  in  an  action  by  the  execution  plaintiff,  the  officer  is  es- 
topped to  deny  that  they  belonged  to  the  debtor,  although,  in 
consequence  of  the  receiptor's  insolvency,  the  judgment  against 
him  was  worthless.^*' 

1  Etters  r.  Wilson,  12  Rich.  145.  '  Canada  v.  Southwick,  16  Pick.  656 ; 

2  Brown  v.  Pratt,  4  Wis.  513.  Bond   v.   Ward,  7    Mass.   123 ;  Marsh  v. 

3  M'Invoy  v.  Dyer,  47  Penn.  118.  Gold,  2  Pick.  285. 

*  Alexander  v.  Macauley,  4  T.  R.  611  ;         »  Clark    v.   Foxcroft,   6   Greenl.   296  ; 

Ritrgs  V.  Thatcher,  1  Greenl.  68  ;  Gunter  Pierce  v.  Jackson,  6  Mass.  242. 
V.  Cleyton,  2  Lev.  85.  9  Commercial,  &c.  v.  Wilkins,  9  Greenl. 

5  Gibbon   i-.   Coggon,   2   Camp.   188  ;  28. 

Dyke  v.  Aldridge,  7  T.  R.  665  ;  4  ib.  611.        ^  The  People  v.  Reeder,  25  N.  Y.  (11 

6  Beckford  i-.  Montague,  2  Esp.  475 ;     Smith)  302. 
Frost  V.  Dougal,  1  Day,  128. 


CH.    XI.]  PUBLIC    OFFICERS.  539 

§  29  a.  On  motion  for  failing  to  return  an  execution,  evidence 
that  the  execution  defendant  was  reputed  insolvent  is  inadmis- 
sible.^ 

§  29  b.  The  sufficiency  of  bail  is  presumed  to  be  known  to  the 
officer  ;  hence  slight  evidence  of  their  insufficiency  will  sustain  an 
action  against  him  ;  as  that  they  have  been  pressed  by  creditors, 
and  repeatedly  broken  their  promises  to  pay.^  The  officer  is 
liable,  without  proof  of  knowledge  on  his  part;  though  he  may 
show  in  defence  that  the  bail  were  apparently  responsible  and  in 
good  credit.^ 

1  Vaushan  v.  Warnell,  28  Tex.  119.  »  Jeffery  v.  Bastard,  4  Ad.  &  Ell.  823; 

-  (iwylliiu  r.  Sclioley,  <J  Ksp.  100;  Concanen  v.  Lt'tlibridi^re,  2  II.  Bi.  30; 
Saunders  v.  Darling,  Bull.  N.  P.  GO.  Hindle  v.  Blades,  5  Taun.  225. 


540  EVIDENCE.  [book   IV. 


CHAPTER    XII. 

EVIDENCE    IN     CASE     OF     HUSBAND     AND     WIFE,     AND     PARENT     AND 

CHILD. 

• 

1.  Crim.  con.  —  proof  of  marriage.  8.  Abduction  of  wife. 

2.  Proof  in   reference  to   adultery,  dam-         10.  Seduction  of  dautrhter. 
ages,  &c.  13.  Abduction  of  dauj^hter. 

§  1.  Independently  of  express  statutory  provisions  to  the  con- 
trary, it  is  the  general  rule  that,  in  the  action  for  criminal  con- 
versation, actual  marriage  must  be  proved.^  Thus  a  reply  of  the 
defendant,  to  the  inquiry  where  the  plaintiff's  wife  was,  that  she 
was  in  the  next  room,  is  not  sufiScient  proof. '-^  It  has  been  held 
otherwise,  however,  with  a  serious  and  solemn  admission;  as  that 
the  defendant  committed  the  wrong  with  full  knowledge  of  the 
fact.^  Proof  of  marriage  according  to  any  prevailing  form  of 
religion  is  held  sufficient.^  (a) 

§  2.  Witli  regard  to  the  proof  of  adultery,  most  of  the  decided 
cases  have  arisen  upon  applications  for  divorce.  Independently 
of  statutory  provision,  however,  the  same  rules  are  substantially 
applicable  to  actions  at  common  law. 

§  3.  "  In  every  case,  almost,  the  fact  is  inferred  from  circum- 
stances that  lead  to  it  by  fair  inference  as  a  necessary  conclusion : 
.  .  .  The  only  general  rule  that  can  be  laid  down  upon  the  subject 
is,  that  the  circumstances  must  be  such  as  would  lead  the  guarded 
discretion  of  a  reasonable  and  just  man  to  the  conclusion."^     In 

1  Morris   v.    Miller,   4   Burr.  2059 ;    1  *  Bull.  N.  P.  28. 

Douff.  174.  5  i^gj.  Lord  Stowell,  Loneden  v.  Lone- 

2  Bull.  N.  P.  28.  den,  2  Hagg.  Con.' 2. 
^  Kigg  V.  Curgenver,  2  Wils.  399.    See 

People  r.  xVnderson,  26  Cal.  lo2. 

(a)  A  and  B,  residing  at   S.,  left  S.  to-  they  lived  there  many  years  as  husband 

gether,  saying  that  they  intended  to  get  and  wife.     On   a  suit  for  dissolution  of 

married  at  G.  ;  and  returned  to  8.,  saying  marriage,  held,  in  the  absence  of  better 

that  they  had  been  married  at  G.     (_)u  evidence,  sufficient  i)roof  of  the  marriage, 

the  day  tliey  left   S.,  there  was  an  entry  Patrickson  v.  Patricksou,  Law  Kep.  1  P. 

of  the  marriage  in  a  book  at  G.,  signed  by  &  D.  86;  Amn.  Law  Rev.,  Oct.  1866,  p. 

A,  the  man  ;  and,  after  their  return  to  S.,  143. 


CH.    XII.]  HUSBAND,    ETC.  ;    PARENT,    ETC.  641 

general,  proximate  circumstances  must  be  proved.^  General 
cohabitation  is  of  itself  sufficient.-  So,  after  proof  of  a  criminal 
disposition,  the  finding  the  parties  together  in  a  bedroom.'^  Adul- 
tery of  a  man  may  be  proved  by  his  visiting  a  brothel ;  by  the 
birth,  support,  and  acknowledgment  of  a  child.  Of  a  woman,  by 
the  birth  of  a  child,  the  husband  being  out  of  the  realm.^  (a) 
But  neither  the  confessions  of  the  wife,  nor  the  opinion  of  a  phy- 
sician wiio  had  attended  on  her,  as  to  her  fondness  for  the  defend- 
ant, are  admissible.''' (6) 

§  4.  The  language  and  deportment  of  husband  and  wife  to 
each  other,  their  correspondence  with  each  other  and  with  stran- 
gers, are  competent  evidence.''  But  not  letters  written  after  the 
alleged  misconduct  of  the  wife,  upon  the  ground  of  possible  col- 
lusion;" nor  after  an  attempt  of  the  defendant  to  seduce  the 
wife.^ 

§  5.  The  wife's  declarations,  prior  to  the  alleged  seduction,  as 
to  the  husband's  cruel  treatment  of  her,  are  admissible  in  mitiga- 
tion of  damages.'^ 

§  6.  The  defendant  may  prove,  in  mitigation  of  damages,  the 
bad  character  of  the  wife,  or  particular  acts  of  unchastity  ;  that 
she  made  the  first  advances;  the  unchaste  conduct  of  the  plain- 
tiff, and  his  ill-treatment  of  the  wife,  which  (as  we  have  seen,§  5) 
has  sometimes  been  shown  (and  more  especially  by  way  of  rebut- 
tal) by  her  own  declarations.  But  not  her  misconduct  since  the 
alleged  adultery.^*^ 

§  7.  It  has  been  held,  that,  where  a  certain  time  is  alleged,  acts 
prior  to  that  time  may  be  proved  as  explanatory  of  subsequent 

1  Williams  v.  ^Yilli:lnls,  1  ILigg.  Con.  ^  Edwards  v.  Crock,  4  Esp.  39;  1  Phil. 
299.                                                                    Ev.   190;  Milton  i-.  Webster,  7  C.  &  P. 

2  Cadogan  v.  Cadogan,  2  ib.  4  n.  ;  Tur-     198. 

ton  V.  Turton,  3  ib.  356.  »  Wilton  v.  Webster,  7  C.  &  P.  198. 

3  Soilioaux  V.  Soilleaiix,  1  ib.  373.  9  Palmer  v.  Crook,  7  Gray,  418. 

4  Astiey  (.-.  Astley,  1  Hagg.  Ecc.  719;  i"  Bull.  N.  P.  29G ;  Gardiner  v.  Jadis, 
Kenrick  v.  Kenrick,  4  ib.  114;  D'Aguilar  1  Sclvv.  N.  P.  24;  Bromley  v.  "Wallace,  4 
V.  D'Aguilar,  1  ib.  777  n. ;  Richardson  Esp.  237  ;  Winter  v.  Wroot,  1  M.  &  liob. 
v.  llicliardson,  ib.  6.  404;   Hodges  r.   Windham,  Peake,  Cas. 

'^  McVey  v.  Blair,  7  Ind.  590.  39 ;  Elsam  v.  Fawcett,  2  Esp.  562. 

•^  Trelawney  v.  Coleman,  2  Stark.  191. 

(a)  A  suit  by  a  wife  for  judicial  separa-  cases  of  adultery.      Crewe  v.  Crewe,  3 

tion   cannot   be   sustained  solely  by  the  llagg.  Ecc.  128. 

testimony  of  a  woman  of  loose  character.         (Ii)  In  a  suit  for  dissolution  of  marriage, 

Ginger  ?•.  Ginger,  Law  Hep.  1  P.  ^<:  I).  29;  a  decree  «/.«/  may  be  foundcl  solely  upon 

*Anni.  Law  Uev.,  ( )(,'t.  I^ti6,  p.  100.     Con-  admissions    of    the    res])(inilent    and    co- 

trary  to  the  general  rule  of  evidence,  im-  res])on(lent.     Williams  v.  Williams,   Law 

pnssion  and  beluf  are  held  competent  in  Keji.  1  1*.  &  D.  29 ;  Amn.  Law  Kev.,  Oct. 

1S66,  p.  100. 


542  EVIDENCE.  [book    IV. 

ones,  though  beyond  the  period  of  limitation,  which  is  set  up  in 
defence.^ 

§  8.  In  an  action  by  a  husband  for  enticing  away  his  wife,  her 
declarations,  made  shortly  before,  are  admissible  for  the  plaintiff, 
as  showing  the  state  of  her  affections  towards  him  up  to  that 
time ;  and  whether  prior  or  subsequent  to  the  marriage.  But 
her  declarations,  as  to  the  words  and  acts  of  the  defendant,  and 
tending  to  sustain  tlie  petition,  are  mere  hearsay,  and  inadmis- 
sible.'^ 

§  9.  In  an  action,  for  enticing  away  the  wife  of  the  plaintiff, 
against  a  part  of  the  persons  alleged  to  have  conspired  together 
for  that  purpose  ;  the  declarations  of  any  of  them  are  admissible 
in  evidence  to  prove  their  own  participation,  but  not  against  the 
others,  without  satisfactory  proof  of  the  conspiracy,  nor  unless 
the  declarations  are  in  furtherance  of  the  objects  of  the  con- 
spiracy .^ 

§  10.  In  an  action  by  a  father  for  the  seduction  of  his  daugh- 
ter, some  proof  of  service  by  the  latter,  or  the  right  to  service 
from  her,  is  required ;  but  service,  however  trivial,  will  sustain  a 
verdict.  Where  a  claim  is  made  for  expenses  in  curing  the 
seduced,  but  there  was  no  proof  to  sustain  it,  if  there  is  a  general 
verdict,  the  presumption  will  be  that  the  jury  allowed  nothing  on 
such  claim.'^ 

§  11.  Evidence  of  promise  of  marriage  is  not  admissible  as  a 
ground  of  damage ;  but  may  be  given  to  explain  the  daughter's 
conduct,  if  she  is  attacked.  The  defendant's  condition  as  to 
property  may  be  inquired  into.  And  the  plaintiff's  dissolute 
habits  ;  but  not  his  general  reputation  in  this  respect.  The  char- 
acter of  the  daughter  is  in  issue.  The  damages  may  be  exemplary 
or  punitive  in  aggravated  cases.^ 

§  12.  In  an  action  by  husband  or  fether  for  seduction,  evidence 
is  admissible  against  the  character  of  the  female  for  chastity. 
Also  evidence  to  rebut  it.  But  not  if  referring  to  a  time  subse- 
quent to  the  seduction.^  So,  in  an  action  for  seduction,  evidence 
is  admissible  of  particular  acts  of  unchastity  with  other  persons.'^ 
But,  in   an  action  for  seduction  of  a  daughter,  she  cannot  be 

1  Duke   of   Norfolk  v.    Germaine,    12  *  poyle  y.  Jesup,  29I1I.  460  ;  5  Har.  335, 

How.  St.  Tr.  92  >.  s  Robinson  v.  Burton,  5  Har.  335. 

'^  Preston  v.  Bowers,  13  Ohio  St.  1.  «  1  Greenl.  Ev.  122,  §  54. 

3  lb.  "!  Kerry  v.  Watkins,  7  C.  &  P.  308. 


CH.    XII.]  PARENT    AND    CHILD.  543 

asked,  even  on  cross  examination,  and  with  reference  to  tlie  time 
near  the  alleged  seduction,  whether  she  had  connection  with 
other  men,  for  the  purpose  of  showing  her  had  character,  or  of 
contradicting  her  in  case  of  denial.  The  court  say  :  "  True  enough, 
the  parent  is  entitled  to  damages  for  the  disgrace  brought  upon 
the  family  by  this  stain  upon  the  general  good  character  or  repu- 
tation of  the  daughter,  but  is  entitled  to  damages  only  for  the 
loss  of  service,  if  her  previous  reputation  for  chastity  was  bad.  .  .  . 
But  reputation  is  a  fact  that  is  to  be  directly  proved,  and  not 
inferred  from  special  acts.  .  .  .  The  law  does  not  inquire  whether 
the  reputation  is  well  founded  or  not;  for,  to  do  so,  it  would  have 
to  investigate  the  whole  life."  ^ 

§  13.  A  father  may  maintain  an  action,  for  harboring  or  secret- 
ing his  minor  daughter,  and  persuading  her  to  remain  absent 
from  his  family  and  service  without  his  consent,  and  in  such 
action  may  recover  for  his  mental  suffering  thereby  caused  ; 
though  he  may  not  introduce  evidence  thereof,  distinct  from  and 
in  addition  to  that  which  shows  the  nature  and  extent  of  the 
injury.2 

1  Per  Lowrie,  C.  J.,  Hoffman  v.  Kem-         '^  Stowe  v.  Heywood,  7  Allen,  118. 
erer,  4J:  Penn.  453 ;  5  Har.  335. 


544  DAMAGES.  [book    V. 


BOOK    V. 

DAMAGES. 

CHAPTER   I. 

GENERAL   RULES    OF  DAMAGES. 

1.  General  remarks.  6.  Liberal   construction    in    favor  of   the 

lb.  A  question   for  the  jury;  subject  to  plaintiff;  exceptions  and  limitations. 
any  le^al  rule  or  measure  of  damages.  7.  Jlode  of  ascertaining  damages;  writ  of 

4.  Nature  of  damages;  ^e?2e»-oi and  s/Jeci'a/.  inquiry,  &:c. 

5.  Pussiblt  injury;  de  minimis,  &c. 

§  1.  In  case  of  tort,  two  entirely  distinct  questions  arise  with 
respect  to  damages.  First,  is  the  injury  one  which  justifies  an 
action  for  damages  ;  or  is  it  so  sh"ght,  so  remotely  connected  with 
the  act  or  neglect  of  the  defendant,  or  so  far  attributable  to  the 
fault  of  the  plaintiff  himself,  that  no  action  can  be  maintained. 
The  other  question  is,  supposing  the  action  to  be  maintainable, 
to  what  amount  of  damages  is  the  plaintiff  entitled,  or  by  what 
standard,  if  any,  is  that  amount  to  be  governed.  The  former  of 
these  questions  has  been  considered  at  some  length  in  the  third 
and  fourth  chapters  of  the  work  to  which  the  present  is  a  supple- 
ment. The  latter  we  propose  now  to  consider.  Of  course  it  has 
been  incidentally  treated  in  connection  with  the  subject  of  evi- 
dence ; —  inasmuch  as  all  facts  legally  admissible  in  evidence  may 
affect  the  damages  ;  and,  on  the  other  hand,  every  thing  which 
has  a  legitimate  bearing  upon  the  damages  may  also  be  offered  in 
evidence.  In  a  less  degree,  also,  damages  are  connected  with 
pleading ;  because  the  amount  which  the  plaintiff  is  entitled  to 
recover  is  often  determined  by  the  allegations  of  the  writ.  The 
subject,  however,  is  a  distinct  one,  by  itself,  and,  as  a  branch  of 
the  general  topic  of  remedies,  requires  a  full  and  detailed  con- 
sideration. 

§  1  a.  It  hardly  need  be  added,  that  the  subject  of  damages,  in 


CH.    I.]  GENERAL   RULES   OF    DAMAGES.  545 

actions  for  torts,  is  of  very  great  and  peculiar  importance.  Tlie 
amount  of  damages  for  breach  of  contract  is  in  many,  perhaps  a 
majority  of  cases,  determined  by  the  contract  itself.  A  party, 
who  neglects  or  refuses  to  pay  a  certain  sum  of  money,  or  to 
deliver  certain  property,  which  he  has  expressly  or  impliedly 
agreed  to  pay  or  deliver,  will,  in  a  suit  at  law,  suffer  a  verdict  and 
judgment  against  him  for  that  sum  or  for  the  value  of  that  prop- 
erty ;  not  unfrequently,  it  is  true,  with  incidental  accompaniments, 
but  still  07ily  as  accompaniments  to  a  fixed  standard  or  basis. 
But,  on  the  other  hand,  an  action  for  tort  is  in  many  cases  said  to 
sound  in  damages  ;  that  is,  the  damages  themselves,  as  determined 
by  a  jury,  constitute  the  first  defined  pecuniary  claim  and  liability 
between  the  parties. ^  Under  these  circumstances,  it  of  course 
becomes  proportionably  important,  that  the  knv  should  substitute 
some  at  least  approximate  standard  of  damages  for  that,  Avhicb  in 
case  of  contract  the  parties  furnish  for  themselves. 

§  1  6.  It  is  held  that  damages  arising  ex  delicto  cannot  be  recov- 
ered unless  specifically  proved,^  and  that  a  plaintiff  must  make 
his  case  certain,  not  merely  probable.^     Thus  a  husband,  in  an 
action    against  a  physician  for  malpractice  while   attending  his 
wife,  cannot  recover  for  alleged  expenses  without  proof  of  such 
expenses.*     So   in  a  suit  for  possession  of  property  unlawfully 
taken  away,  with  a  claim  for  damages  for  unlawful  detention,  the 
court  will  restrict  the  judgment  for  damages  to  the  amount  actu- 
ally proved.^     So  one  decreed  to  be  the  owner  of  a  mule,  in  the 
possession  of  another,  may  recover  it,  and  hire  for  its  services 
while  in  the   possession  of  the  defendant ;   but  not  its  value  in 
money  in  default  of  delivery,  without   proof  of  its  value.*^     But 
where  it  is  proved,  in  a  writ  of  entry  for  land  levied  on,  that  the 
judgment  debtor,  who  procured  the  land  to  be  conveyed  to  the 
tenant,  Avas  so  indebted  at  the  time  as  to  render  the  conveyance 
fraudulent ;  the  demandant  need  not  show,  even  approximately, 
the  amount  of  such  indebtedness." 

§  1  c.  In  an  action  by  A,  one  of  a  mercantile  firm,  against  a 
railroad,  for  injuries  to  his  person,  A  cannot  ask  B,  the  other  part- 
ner, what  was  the  damage  to  the  firm  for  a  specified  time,  by 
reason  of  A's  absence,  caused  by  his  injuries.     B  cannot  state  his 

1  See  Smith  v.  Warner,  14  Mich.  152.  5  Means  v.  Hyde,  U)  La.  An.  478. 

2  Minor  V.  Wrijiht,  16  La.  An.  151.  «  Dan.u'erfieUl  v.  Fauvcr,  ib.  17L 

3  lianson  v.  Labranciie,  ib.  121.  T  Clark  v.  Chamberlain,  13  Allen,  257. 
*  Hyatt  V.  Adams,  16  Mich.  180. 

35 


546  DAMAGES.  [book   V. 

Opinion  as  to  the  amount,  but  only  facts  from  which  the  jury  can 
estimate  it.^ 

§  1  c/.  In  an  action  for  a  wrong,  whether  arising  out  of  trespass 
or  negligence,  tlie  jury,  in  estimating  the  damages,  may  take  into 
consideration  all  the  circumstances  attending  it;  ^  such  as  circum- 
stances in  aggravation,''  which  give  character  to  the  transaction."  ^ 
And  it  is  held,  that  the  jury  may  give  such  damages  as  the  case 
requires  in  equity."^  Thus  where  one  obstructed  a  way,  whereby 
another  was  prevented  from  repairing  his  dam  when  necessary  : 
the  measure  of  damages  was  held  not  necessarily  the  reasonable 
cost  of  removing  the  obstruction  ;  but  the  decision  of  the  jury, 
considering  the  motives  of  the  parties,  and  all  the  circumstances, 
was  the  only  standard.^  A  passenger  on  a  steamboat,  injured  by 
the  explosion  of  a  boiler,  may  recover  for  his  bodily  pain  and 
suffering.^  So,  in  an  action  for  injury  caused  by  an  accident  upon 
a  railroad,  damages  may  be  allowed  for  the  plaintiff's  mental 
sufferings,  the  dismay  and  consequent  shock  to  the  feelings,  with- 
out reference  to  the  question  of  vindictive  damages.  "  His  mind 
is  no  less  a  part  of  his  person  than  his  body ;  and  the  sufferings 
of  the  former  are  oftentimes  more  acute,  and  also  more  lasting, 
than  those  of  the  latter.  .  .  .  The  dismay,  and  the  consequent 
shock  to  the  feelings,  which  is  produced  by  the  danger  attending 
a  personal  injury,  not  only  aggravate  it,  but  are  frequently  so 
appalling  as  to  suspend  the  reason,  and  disable  a  person  from 
warding  it  off." "  So  in  a  suit  by  a  passenger  against  a  steamboat, 
under  an  allegation  that,  by  reason  of  the  steamer  being  over- 
loaded Math  passengers,  the  plaintiff  and  his  family  "  were  sub- 
jected to  great  inconvenience  and  injury  ;  "  the  plaintiff  may  give 
in  evidence  his  sickness  caused  by  the  want  of  sufficient  bed- 
clothing.^  So,  in  estimating  the  damages  against  a  railroad  for 
injury  to  a  child,  the  jury  should  consider  the  health  and  con- 
dition of  the  plaintiff  before  the  injury,  as  compared  with  his 
present  condition  in  consequence  of  such  injury,  whether  the 
injury  is  in  its  nature  permanent,  and  how  far  it  is  calculated  to 

1  Blair  v.  Milwaukee,  20  Wis.  262.  &c.,  25  ib.  467 ;  St.  Paul  v.  Kuby,  8  Min. 

2  Emblin  v.  Myers,  6  Hurl.  &  Nor.  54 ;  154;  Allison  v.  Chandler,  11  Mich.  542. 
30  L.  J.  Exch.  71.     See  Bell  v.  Midland,  5  McTavish  v.  Carroll,  13  Md.  429. 
&c.,  9  W.  R.  612,  C.  P. ;  Jones  v.  Allen,  ^  Swarthout  v.  New  Jersey,  46  Barb. 
1  Head,  626.  222. 

3  Bateman  v.  Goodyear,  12  Conn.  575.  7  Seger   v.    Barkhamsted,    22    Conn. 

4  Leland  r.  Stone,  10  Mass.  459,  462;  290;  per  Storrs,  J.,  ib.  298;  Cooper  v. 
Weld    V.   Bartlett,    ib.   470 ;    Aldrich    v.  MuUins,  30  Geo.  146. 

Palmer,  24  Cal.  616 ;  Boyce  v.  California,         8  Roberts  v.  Graham,  6  Wall.  578. 


CH.    I.]  GKNERAL   RULES   OF   DAMAGES.  547 

disable  him  from  engaging  in  tliose  mechanical  employments  and 
pursuits  for  which  he  would  otherwise  have  been  qualified;  also, 
his  ph^'sical  and  mental  suffering.^  So  in  an  action  by  a  husband 
and  wife  against  a  physician,  for  an  injury  to  the  wife  in  deliver- 
ing her  of  a  child,  damages  may  be  given  for  her  mental  suffering 
produced  by  the  destruction  of  the  child.-  So,  in  an  action  for 
malicious  arrest,  the  jury  are  bound  to  consider  the  jeopardy  to 
liberty,  the  distance  the  plaintiff  was  compelled  to  walk,  his  age 
and  physical  condition,  bodily  suffering,  mental  anxiety  and  pain.^ 
So  in  an  action  against  a  gas  company,  for  refusing  to  supply  gas 
to  a  store,  he  is  entitled  to  compensation  for  the  pecuniary  loss, 
and  also  for  the  inconvenience  and  annoyance  experienced  by 
him  in  his  mercantile  business.*  So  an  armed  body  of  men,  who 
break  into  a  store,  take  away  the  stock,  put  the  owner  in  fear  of 
bodily  harm,  threaten  his  life  if  he  resists,  and  injure  his  business, 
are  liable  not  only  for  the  value  of  the  property  taken,  but  also 
for  breaking  and  entering  the  store,  seizing  the  property,  putting 
the  owner's  person  in  danger,  breaking  up  his  stock,  and  injuring 
his  business,  and  greatly  annoying  and  disturbing  him.'  And,  in 
general,  in  an  action  for  a  personal  injury  resulting  from  negli- 
gence, the  jury  may  allow  damages  for  the  plaintiff's  natural 
anxiety  and  mental  suffering  at  the  time,  caused  by  the  danger.*^ 
§  2.  In  general,  the  remedy  shall  be  commensurate  with  the 
injury.^  If  there  be  a  legal  rule  for  the  measurement  of  damages, 
the  jury  must  follow  it ;  ^  as,  for  example,  in  an  action  of  trover.^ 
And  if  a  judge  at  nisi  prius  does  not  inform  the  jury  what  is  the 
proper  measure  of  damages,  on  an  issue  on  which  it  is  admitted 
that  the  plaintiff  is  entitled  to  a  verdict  and  to  damages,  the 
court  will  direct  a  new  trial,  ajthough  the  point  was  not  taken 
by  counsel  at  the  trial. ^°  (a)     So,  in  an  action  for  running  over 

1  Bannon  v.  Baltimore,  24  Md.  108.  Swift  v.  Barnes,  16  Pick.  I'Ji  ;  Bussey  v. 

2  Smitii  V.  Overby,  30  Ga.  241.  Donaldson,  4  Dall.  206. 

3  Aliern  v.  Collins,  39  Mis.  145.  »  Warren  v.  Cole,  15  Mich.  265. 

4  Shepard  f.  Milwaukee,  15  Wis.  318.  »  Kyan    v.  Baldrick,    3   M'Cord,  498; 
*  Freidenlieit  c.  Edmundson,  36  Mis.  Baker  v.  Wheeler,  8  Wend.  505. 

226.  1"  Knight  v.  Egerton,  12  Kng.  L.  &  Eq. 

s  Masters  v.  Warren,  27  Conn.  393.  562. 

7  Kockwood   V.   Allen,   7   Mass.   254 ; 

{(i)  Wliere  property  is  in  question,  tlie  In  an  action  for  forcihly  lirickiiijj  up 

value  of  the  article,  as  nearly  as  it  can  he  the  entrance  of  a  restaurant  kej)!  hy  the 

ascertained,  furnishes  a  rule,  from  which  plaintitt",   and   thereby    brt-aking    u])    his 

the  jury  are  not  at  liberty  to  depart.  Hille-  business,  evidence  that  "  the  plaintiff  did 

brant  v.  Brewer,  6  Tex.  45.  a  pretty  large  business,"  that  "  tiie  busi- 


548 


DAMAGES. 


[book  V. 


the  plaintiff  with  a  train  of  coal-cars,  by  reason  of  which  the  ampu- 
tation of  his  foot  became  necessary,  the  court  charged  the  jury, 
"that  there  was  no  certain  rule  by  which  to  estimate  the 
damages  for  the  personal  injury  to  the  plaintiff,  and  that  the 
jury  will  fix  them  at  such  sum  as  they  think  right  and  proper 
under  the   evidence."      Held,  the  injury  not   being  wilful,  com- 


iiess  was  good  and  profitable,"  and  that 
"one-halfof  the  receipts  were  clear  profit," 
is  admissible,  to  show  in  some  manner  the 
nature  and  extent  of  the  injury.  Marquart 
V.  La  Farge,  -5  Duer,  5.59. 

In  an  action  for  conversion  of  a  large 
numl)er  of  watches,  testimony  as  to  their 
average  value  is  competent.  Illingworth 
V.  Greenleaf,  11  Minn.  '2'd'o. 

In  an  action  to  recover  damages  for 
conversion  of  gold  coin,  the  measure  of 
damages  is  tiie  value  of  the  gold,  esti- 
mated in  currency.  Taylor  v.  Ketchum, 
5Kob   (N.  Y.)  507. 

In  detinue,  a  witness  was  permitted  to 
prove  the  value  of  the  property  at  the 
time  of  taking.  Held,  as  this  was  the 
true  measure  of  damages  in  the  absence 
of  fraud,  malice,  or  oppression,  the  de- 
fendant could  not  complain  that  the  more 
stringent  rule,  which  leaves  to  the  jury 
the  amount  of  damages  when  there  are 
aggravating  circumstances,  was  not  ap- 
plied to  his  case.  Whitfield  v.  Whitfield, 
40  Miss.  352. 

Evidence  of  what  property  brought  at 
auction,  subsequent  to  the  alleged  con- 
version, is  admissible,  as  having  some  ten- 
dency to  prove  its  value.  Smith  v. 
Mitcliell,  12  Mich.  180. 

Although  witnesses  may  give  opinions 
as  to  the  value  of  property,  such  testimony 
as  to  the  amount  of  damages  sustained  is 
inadmissible.  Prosser  v.  Wapello,  18 
Iowa,   327. 

Where  injury  is  done  to  property,  the 
measure  of  damages  is  not  the  cost  of 
restoring  it  to  its  original  condition,  if 
such  cost  may  exceed  its  value,  or  the 
actual  damage.  Harvey  v.  Sides,  1  Nev. 
539. 

Where  an  injury  was  done  in  Canada, 
and  a  suit  brought  in  a  United  States 
court,  a  sum  in  United  States  currency 
was  allowed,  which  approximateil  most 
nearly  to  that  to  which  the  party  injured 
was  entitled  at  the  place  of  the  injury. 
Cramer  v.  Allen,  5  Blatchf  C.  C.  248. 

The  defendant  cut  logs  on  the  land  of 
A,  the  plaintift"'s  intestate,  his  partner, 
but  showed  no  license  from  A,  or  that  the 
proceeds  were  carried  into  the  partnership 
account.     Held,  the  logs  being  the  prop- 


erty of  A,  the  plaintiff  could  recover  the 
amount  received  for  them,  being  not  more 
than  their  real  value,  with  interest.  Symes 
V.  Oliver,  13  Mich.  9. 

In  an  action  for  killing  a  horse,  the 
value  of  the  horse  at  the  time  of  his  death 
is  the  measure  of  damages.  But  the  de- 
fendant may  show  the  condition  of  the 
horse,  by  witnesses  who  had  seen  him  at 
any  reasonable  time  before  the  killing, 
ranging  within  three  months,  and  then, 
after  proving  by  other  witnesses  that  his 
condition  was  unchanged,  the  former  may 
testify  to  the  value  of  the  horse  at  the 
time  of  the  killing,  on  the  hypothesis  that 
his  condition  was  the  same  as  when  they 
saw  him.     Toledo  r.  Smith,  25  Ind.  288. 

Where  cofi'ee  was  damaged  on  its  voy- 
age from  Boston  to  Kew  Orleans,  and  in 
its  damaged  state  was  shipped  up  the 
river  to  St.  Louis  :  the  original  cause  of 
damage  being  established,  and  there  be- 
ing no  evidence  of  any  additional  damage 
received  in  its  last  voyage ;  held,  the 
amount  of  damage  ascertained  to  have 
been  received,  on  examination  at  St. 
Louis,  might  be  received  as  a  fair  criterion 
of  the  amount  received  on  its  arrival  at 
New  Orleans.  The  Norman,  1  Newb. 
Adm.  525. 

A  peculiar  question  as  to  the  measure 
of  damages  is  presented  by  the  separation 
of  the  property  in  question  from  the 
realty,  of  which  it  made  a  part  before  the 
wrongful  act  complained  of.  The  value 
of  (/old  thus  separated  is  to  be  estimated 
as  of  the  time  when  it  becomes  a  chattel. 
Antoine,  &c.  v.  Ridge,  &c.  23  Cal.  219. 

The  value  of  an  orchard  is  to  be  esti- 
mated, with  reference  to  what,  in  its 
growing  state,  it  is  worth  to  the  ])remises. 
Mitchell  I'.  Billingsley,  17  Ala.  391.  The 
actual  value  of  growing  timber  is  not  its 
supposed  worth  to  the  owner,  but  the 
price  for  which  it  would  sell  at  the  time 
in  the  neighborhood  in  which  it  is  situ- 
ated.    Ivey  V.  McQueen,  ib.  408. 

In  trespass  quare  clausum,  where  no 
indignity  to  the  person  or  invasion  of 
personal  rights  is  shown,  the  extent  of  the 
injury  to  proprietary  rights  forms  the  true 
measure  of  damages.  Jefcoat  v.  Knotts, 
13  Rich.  L.  50. 


CH.  I.]  GENERAL  RULES  OF  DAMAGES.  549 

pensafion  was  the  measure  of  damages,  and  the  instruction  was 
erroneous  for  want  of  precision  upon  this  point.^  So  it  is  error, 
in  an  action  for  a  personal  injury,  to  leave  to  the  jury  to  deter- 
mine the  legal  import  of  actual  damages  :  the  court  should  instruct 
them  that  "  compensation  "  consists  in  remuneration  for  loss  of 
time,  necessary  expenditures,  and  permanent  disability ."■^ 

§  3.  But,  as  is  truly  remarked  in  a  very  recent  case  :  "  It  is 
often  much  easier  to  discover  when  an  assumed  rule  for  damages 
will  lead  to  erroneous  results,  than  to  point  out  in  all  cases,  in 
advance,  what  the  true  rule  should  be."  ^  In  actions  for  personal 
torts,  the  law  does  not  fix  precise  rules  of  damages,  but  the  mat- 
ter is  left  to  the  discretion  of  the  jury.*  In  actions  for  quasi 
offences,  the  law  has  left  a  discretion  to  the  court  and  jury  to 
assess  the  damages." 

§  4.  The  nature  of  damages,  and  the  distinction  between  gen- 
eral and  special  damages,  are  thus  explained  by  an  approved 
writer:  "  All  damages  must  be  the  result  of  the  injury  complained 
of.  Those  which  necessarily  result,  are  termed  general  damages, 
being  shown  under  the  ad  damnum,  .  .  .  for  the  defendant  must 
be  presumed  to  be  aware  of  the  necessary  consequences  of  his 
conduct,  and  therefore  cannot  be  taken  by  surprise  in  the  proof 
of  them.  .  .  .  But  where  the  damages,  though  the  natural  conse- 
quences of  the  act  complained  of,  are  not  the  necessary  result  of 
it,  they  are  termed  special  damages;  which  the  law  does  not 
imply;  and  therefore,  in  order  to  prevent  a  surprise  upon  the 
defendant,  they  must  be  particularly  specified  in  the  declaration, 
or  the  plaintiff  will  not  be  permitted  to  give  evidence  of  them. 
But  where  the  special  damage  is  properly  alleged,  and  is  tlie  nat- 
ural consequence  of  the  wrongful  act,  the  jury  may  infer  it  from 
the  principal  fact."*^ 

§  5.  A  mere  possible  injury  furnishes  no  ground  of  damages.'^ 
But  every  trespass  to  property  gives  a  right,  at  least,  to  nominal 
damages.^  It  is  held  that  the  maxim,  "  de  minimis  non  curat  lex,' 
when  properly  applied  to  prevent  a  right  of  recovery,  has  refer- 
ence to  the  injury,  and  not  to  the  resulting  damages.  That  it 
is  never  properly  applied  to  a  wrongful  and  positive  invasion  of 

1  Heil  V.  GlanilinjT,  42  Penn.  493.  ^  pjkg  „.  Doyle,  10  La.  An.  3G2. 

2  Parker  v.  Jenkins,  3  Hush,  oS7.  6  2  Greenl.  Ev  ,  20'J,  §  254. 

3  Per 'riininpson,  J.,  McKniglit  I'.  Rat-  "  Massey   i\   Craine, "  1    M 'Cord,  489  ; 
cliff,  44  Penn.  Hi'.).  Bond  v.  Quattlebaum,  ib.  ")S4. 

*  Aldrich  v.  Palmer,  24  Cal.  513.  »  Ciiampion  v.  Vincent,  20  Tex.  811. 


550  DAMAGES.  [book   V. 

property,  wlien  damages  result  which  are  capable  of  estimation. 
That  to  give  a  riglit  of  action  there  must  be  both  an  injury  and 
a  damage  ;  but  every  violation  of  a  right  imports  some  damage  ; 
and,  if  none  other  be  proved,  the  law  allows  nominal  damages. 
Thus,  in  levying  an  execution  upon,  and  removing  machinery 
from  a  building,  in  order  to  disengage  it  from  the  bands  by  which 
it  was  connected  with  the  shafting,  which  bands  did  not  belong  to 
the  owner  of  the  machinery,  but  to  the  plaintiff,  the  mortgagee 
of  the  building;  the  defendants  cut  the  thongs  by  which  the  bands 
were  laced  together,  which  thongs  could  have  been  easily  untied 
and  taken  out  without  cutting.  The  testimony  tended  to  show 
that  these  thongs  were  considerably  worn,  and  of  small  value. 
The  court  charged  the  jury,  that,  if  they  found  that  the  thongs 
were  old,  worn  out,  and  nearly  worthless,  the  defendants  would 
not  be  liable  for  cutting  them,  unless  they  did  so  wantonly ;  and 
advised  them,  as  the  suit  appeared  to  be  brought  to  try  the  defend- 
ants' right  to  enter  the  building  and  take  the  machinery,  not  to 
decide  it  upon  the  ground  of  a  trifling  damage  of  this  kind  to 
the  thongs,  provided  the  officer  acted  in  good  faith.  Held,  these 
instructions  were  erroneous,  because  the  damage,  though  small, 
was  still  capable  of  estimation,  and  the  plaintiff  was  entitled  to 
recover  for  such  damage,  and  therefore  a  new  trial  was  granted.^ 
§  6.  In  many  cases,  the  law  gives  a  liberal  construction  in  favor 
of  the  plaintiff  to  the  right  of  recovering  damages  for  injuries. 
Thus  a  party,  who  appropriates  to  his  own  use  another's  land,  is 
liable  in  damages  for  the  value  of  the  land  to  one  luho  has  a  use 
for  it?  So  where,  from  the  circumstances  of  the  case,  the  defend- 
ant, but  not  the  plaintiff,  has  it  in  his  power  to  show  the  amount 
of  damage  sustained,  heavy  damages  are  justified.^  So,  in  an 
action  for  conversion  of  property  fluctuating  in  value,  the  plaintiff 
is  entitled  to  the  highest  value  at  or  after  the  time  of  conversion.^ 
And  a  plaintiff  is  not  restricted,  in  the  amount  of  damages,  to  the 
sum  which  he  demanded  of  the  defendant  for  the  injuries.^  But 
a  court  of  equity,  in  assessing  damages  resulting  from  a  wrongful 
taking  and  detention  of  property,  will  give  neither  vindictive  nor 
speculative  damages,  but  compensation  only  for  the  actual  loss 

1  Fullam  V.  Stearns,  30  Verm.  44.3.  4  Douglass  v.  Kraft,  9  ib.  5G2. 

-  arCartliv  i\  Cabrera,  17  Tex.  629.  5  Western,    &c.    v.    Carlton,  28    Geo. 

3  Antoine,'&c.  v.  Ridge,  23  Cal.  219.         180. 


CH.    I.]  GENERAL   RULES   OF   DAMAGES.  551 

and  injury.^  And  it  is  said,  "  What  the  law  seeks  to  secure  in  an 
assessment  of  damages  to  an  injured  party  is  compensation.  He 
can  ask  no  more  than  to  be  made  whole." ^  More  especially,  "In 
all  actions  on  the  case,  the  question  is,  What  is  the  amount  of  dam- 
ages sustained  ?  "  ^  And  it  is  sometimes  held,  in  trespass,  where 
there  is  no  aggravation,  that  damages  shall  be  given  only  for  the 
actual  iDJury."*  Thus,  where  the  judge  instructed  the  jury,  in 
an  action  of  trespass  for  levying  an  execution  upon  property 
which  the  plaintiff  had  conditionally  sold  to  the  execution  debtor, 
to  find  the  value  of  the  property  and  interest,  and  such  further 
amount,  as,  under  all  the  circumstances  of  the  case  as  argued  by 
the  counsel,  they  might  think  the  plaintiff  entitled  to  demand,  if 
any;  held  erroneous;  the  court  remarking:  "This  is  giving  them 
a  discretionary  power  without  stint  or  limit,  highly  dangerous  to 
the  rights  of  the  defendants.  .  .  .  Nothing  appears  which  should 
swell  the  damages  beyond  the  value  of  the  interest  which  the  ven- 
dee (vendor)  had  in  the  property."^ 

§  7.  In  case  of  default,  the  ordinary  mode  of  ascertaining  dam- 
ages is  by  a  ivrit  of  inquiry.  And  it  is  held,  that  the  record  must 
show  such  writ.^  Where  the  defendant  in  trespass  qu.  clans. 
becomes  defaulted,  he  has  a  right  to  be  heard  in  damages.  And, 
if  the  jury  assess  them  at  the  request  of  the  plaintiff',  either  party 
may  except  to  the  instructions  of  the  judge  as  to  the  principles 
which  should  govern  them.'''  {a)     So  in  trover,  after  default,  the 

1  Sanders  v.  Anderson,  10  Rich,  Eq.  *  Conard  v.  Pacific,  &,c.,  G  Pet.  2G2. 

232.  5  Ko-ie  v.  Story,  1  Barr,  I'.tl. 

-  Per  Strong,  J.,  M'Inroy  v.  Dyer,  47  ^  Wctzcil  v.  Waters,  18  Mis.  396. 

Penii.  121.  ''  Cromniett  v.  Pearson,  G  Sliep.  344. 

3  West  V.  Rice,  9  Met.  564. 

{a)  "Where  defendants  in  trespass  mark  all.    Bowman  v.  Noyes,  12  N.  H.  302.    See 

their  cause  "not  for  the  jury,"  and  tlie  Pratte    v.    Corl,   9   Mis.    1G3  ;    Evans   v. 

court  order  judgment  for   tiie  plaintiffs,  Bowlin,  ib.  406;  Chambers  v.  Latlirop,  1 

and  that  the  damages  be  assessed  by  a  Morris,   102  ;  Davis   v.   Morford,  ib.   99  ; 

jury ;  tlie  defendants  may  still  introduce  Parvin  v.  IIooi)es,  ib.   294  ;   Romaine   v. 

any  evidence  relevant  to  damages.  Cham-  Commis.^ioners,  &c.,  ib.  357;   Kalioon    v. 

berlin  r.  .Murphy,  41  ^'t.  111).  "  Wiscousin,     >.^ic.,   10    AVis.    290;     Kecler 

After  default,  not  ui)on  an  instrument  v.    Campbell,  24  111.  287  ;    Van  Dusen  v. 

in  writing,  the  defendant  has  a  right  to  Pomeroy,  ib.  289 ;    Nobles  v.  Christmas, 

have   the   damages   assessed  by  a  jury.  2   How.  Miss.  885;    Grigsby  v.  Ford,  3 

Brown  r.  King,  39  Mis.  880.  ib.  184;    Clemson  v.  State  Bank,  1  Scam. 

In  New  Hampshire,  when  a  default  is  45. 
entered,  the  court  as.sess  the  damages.  On  the  execution  of  a  writ  of  inquiry, 
unless,  for  s])ecial  reasons,  it  is  deemed  after  judgment  by  default,  in  an  action 
ex])edient  to  order  an  inquiry  of  damages  for  levying  upon  tlie  plaintill  's  projierty 
by  the  jury.  If  one  defendant  be  de-  under  an  execution  against  A  ;  the  de- 
faulted, and  another  plead,  the  jury,  if  fendant  may  show,  in  mitigation  of  dam- 
they  find  for  the  ])laintitt',  assess  damages,  ages,  that  at  the  time  of  and  before  the 
for  which  judgment  is  rendered  against  levy  the  property  was  in   possession  of 


552  DAMAGES.  [book   V. 

defendant  is  entitled  to  be  heard  in  the  assessment  of  damages  by 
the  court,  he  having  moved  for  a  liearing  before  the  final  adjourn- 
ment of  the  court,  and  before  judgment  had  been  entered  up. 
"  In  the  English  practice,  upon  default,  the  plaintiff  is  entitled,  as 
of  right,  to  a  writ  of  inquiry,  and  an  assessment  of  damages  by  a 
jury,  unless  he  consents  that  they  be  assessed  by  a  master  or  a 
prothonotary  appointed  by  the  court.  The  defendant  .  .  .  has  no 
such  election.     Pie  has  no  right  to  a  jury  to  assess  damages."^ 

§  8.  Where  the  jury  have  found  a  verdict  for  the  defendant, 
with  leave  given  to  the  plaintiff  to  enter  a  verdict  for  a  sum  at 
which  his  damages  have  been  without  objection  contingently 
assessed,  the  court  will  not  grant  a  new  trial,  in  order  that  there 
may  be  a  fresh  assessment.^ 

§  9.  Where  there  is  an  issue  of  law  and  an  issue  of  fact  in  the 
same  cause,  and  the  latter  is  first  tried,  there  is  no  need  of  assess- 
ing damages  contingently,  if  the  issue  of  fact  goes  to  the  whole 
declaration.^ 

§  9  a.  Upon  an  agreed  statement  of  facts,  not  fixing  or  provid- 
ing for  the  assessment  of  damages ;  a  judgment  for  the  plaintiff 
will  be  for  nominal  damages."* 

§  10.  In  trials  at  common  law,  all  testimony  must  be  delivered 
orally  in  presence  of  the  jury,  who  are  to  try  a  cause  or  assess 
damages,  except  where  the  statute  provides  for  the  admission  of 

1  Becrg  V.  Whittier,  48  Maine,  314 ;  per         »  Bates  v.  Green,  19  Wend.  630. 
Appleton,  J.,  ib.  315.  *  McAneany  v.  Jewett,  10  Allen,  151. 

^  Booth  V.  Clive,  4  Eng.  L.  &  Eq.  374. 

A ;  and,  also,  that  the  plaintiff  was  not  that  any  thing  new  has  been  discovered 

the  owner,  that  fact  not  being  necessarily  by  the  plaintiff  since  the  granting  of  the 

inconsistent  with  the  right  to  the  posses-  original  order.     Joannes  v.  Fisk,  3  Bob. 

sion;  but  not  that  the  plaintiff  had  not  (N.  Y.)  710. 

such  a  title  as  would  authorize  a  recovery.  In  an  action  for  the  delivery  of  cotton, 

Sterrett's  v.  Raster,  37  Ala.  366.  or  for  damages  in  default  tiiereof,  damages 

It  is   held,  that  no   writ  of  inquiry  is  may  be  assessed  by  the  judge  at  the  time 

allowable  for  a  defendant.     Hopewell  v.  of  default.     Seris  v.  Bellocq,  17  La.  An. 

Price,  2  Har.  &  G.  275.  146. 

In  an  action  to  recover  a  penalty  under         The  court  may  assess  damages  without 

Rev.    Stat,    of  ]\Iaine,   c.   158,    §   17,  for  a  jury,  when  judgment  is  rendered  upon 

falsely  and  corruptly  certifying  as  a  wit-  the  overruling  of   a  demurrer,  under  a 

ness,  the  amount  to  be  recovered  may  be  statute  which  permits  it  in  cases  of  default, 

assessed  bv  the  jury.    Kennedy  v.  Wright,  Hopkins  v.  Ladd,  35  111.  178. 
34  Maine,  351.  Art.  75,  §  62,  of  the   (Md.)   Code,  as 

Wiiere,  in  an  action  for  libel,  the  de-  amended  and  re-enacted   by  the  Act  of 

fendant  fails  to  appear,  and  the  plaintiff  1864,  c.  175,  contains  no  limitation  as  to 

procures  an  order  to  assess  damages  by  a  time  within  which  inquisitions  upon  judg- 

sheriff's  jury,   such    order   will    not    be  ments  by  default  must  be  taken,  and  it 

vacated   upon  motion  of  the  plaintiff,  in  embraces  by  its  terms  all  cases  in  which 

order  to  have  the  damages  assessed  by  a  default  was  entered  before  its  passage, 

trial  before  a  judge,  if  it  does  not  appear  Stansbury  v.  Keady,  29  Md.  361. 


CH.  I.] 


GENERAL   RULES    OF    DAMAGES. 


553 


depositions.  Therefore  the  evidence  spread  on  the  record,  in  a 
case  in  which  a  demurrer  is  offered  to  evidence,  cannot  be  allowed 
to  go  to  a  second  jury,  impanelled  to  assess  damages  after  the 
demurrer  is  overruled.^ 

§  11.  Upon  a  writ  of  inquiry,  the  defendant  cannot  set  up  a 
substantive  defence.^  (a) 

§  12.  By  consent  (in  Ohio),  the  court  may  leave  a  question  of 
damages  to  arbitrators.^ 

§  13.  In  Indiana,  where  the  report  of  persons  appointed  to 
assess  damages  sustained  for  draining  a  creek  was  set  aside,  the 
application  for  a  second  assessment  cannot  be  made  seven  years 
thereafter.'* 


1  Young  V.  Foster,  7  Port.  420. 

2  South,  &c.  V.  Foster,  20  111.  296. 


3  Conner  v.  Drake,  1  Ohio  St.  1G6. 

4  Brake  v.  The  Board,  &c.,  2  Cart.  606. 


(a)  In  Illinois,  the  defendant  cannot  set    shall  stand  open  until  a  particular  day, 


up  any  new  defence  ;  but  he  may  cross- 
examine  witnesses,  offer  testimony  in  re- 
duction of  the  sum  claimed,  and  ask 
instructions  of  the  court.  Herrington  v. 
Stevens,  2t;  111.  298. 

A  detault,  and  agreement  that  the  case 


when  damages  shall  he  assessed  by  the 
magistrate,  is  not  a  waiver  by  tlie  defend- 
ant of  his  right  to  plead  to  the  merits 
upon  appeal.     Jaha  v.  Bellcg,  13  Allen, 

7«. 


554  DAMAGES.  [book  V. 


CHAPTER    11. 

AMOUNT    OF    DAMAGES  ;     NOMINAL    DAMAGES  ;     MITIGATION     OF     DAM- 
AGES. 

1.  Nominal  damage!?.  6.  Equitable    and    statutory    grounds   of 

2.  iMitigatiou  or  reduction;    recoupment;     reduction;    counter-claim. 

set-off.  15.  Ketuni  of  the  property  taken ;  applica- 

tion of  proceeds  to  the  plaintiff's  benefit. 

§  1.  We  have  already  stated  the  general  principle,  that  a  party 
is  entitled  to  damages  corresponding  with  the  amount  of  injury 
suffered,  however  small.  With  more  special  reference  to  what 
are  technically  termed  nominal  da?nages,  (a)  it  is  the  prevailing 
rule,  that,  where  an  invasion  of  a  right  is  established,  though  no 
actual  damage  be  shown,  the  law  imports  damage,  and  nominal 
damages  will  be  given.  As  where  the  unlawful  act  might  have 
an  effect  upon  the  right  of  a  party,  and  be  evidence  in  favor  of 
the  wrong-doer,  if  the  right  ever  came  in  question  ;  or  where  a 
continuance  of  the  wrong  might  result  in  an  easement  or  incum- 
brance on  land.  So  when  one  wantonly  invades  another's  rights, 
for  the  purpose  of  injury.  Though  not  for  a  trespass  to  personal 
property,  when  no  unlawful  intent,  or  disturbance  of  a  right  or 
possession,  is  shown,  and  when  the  property  sustains  no  injury .^ 
Thus,  in  an  action  of  slander,  where  there  is  no  real  injury,  the 
jury  may  find  for  nominal  damages ;  and,  it  seems,  may  consider 
the  question  of  costs.  As,  in  an  action  by  the  master  of  a  work- 
house, for  words  imputing  to  him  that  he  dishonestly  got  honest 
men  turned  out  of  employment  there,  in  order  to  get  in  creatures 
of  his  own,  for  his  own  purposes.  The  words  were  held  action- 
able ;  but,  being  spoken  in  angry  altercation,  and  without  malice, 
the  jury  were  directed  that  they  might,  if  they  thought  there 

1  Paul  V.  Slason,  22  Verm.  231;  Bassett  w.  Salisbury,  &c.,  SFost.  438;  Whipple  v. 
Cumberland,  &c.,  2  Story,  661. 

(a)  It  is  hardly  necessary  to  remark,  action  is  maintainable  ;  and  therefore  ap- 

that  the  question  whether  nominal  dam-  pertains  to  the  general  subject  of  torts, 

ages,  at  lenst,  can   be  recovered,  is   but  rather  than  to  the  special  head  of  damages, 
another  form  of  the  question,  whether  an 


CH.  II.]    AMOUNT  OP  DAMAGES,  NOMINAL  DAMAGES,  ETC.      555 

was  no  real  injury,  give  nominal  damages,  so  as  not  to  carry  costs ; 
and  the  defendant's  counsel  was  allowed  to  ask,  on  cross-examina- 
tion, what  would  be  the  probable  amount  of  costs  to  the  defendant 
if  a  verdict  for  more  than  a  nominal  amount  were  given. ^  So  a 
plaintifF  in  trespass,  failing  to  prove  the  value  of  the  rents  and 
profits,  use  and  occupation,  damages  or  aggravating  acts,  is  enti- 
tled only  to  nominal  damages.^  So,  in  trespass  for  taking  and 
converting  property,  the  proof  must  show  the  value,  or  special 
damage,  in  order  to  recover  more  than  nominal  damages.^  So,  in 
an  action  against  a  common  carrier  for  neglect,  only  nominal  dam- 
ages can  be  recovered,  unless  special  injury  is  proved.'*(a)  So,  it 
is  the  prevailing  rule,  that,  in  an  action  for  flowage,  if  the  damage 
is  so  small  that  it  cannot  be  estimated,  the  plaintifF  is  still  enti- 
tled, at  common  law,  to  nominal  damages.^  (b)  Damage  is  implied, 
but  "  the  lowest  damage."  ^  So  where  an  action  is  brought  for 
damages  to  personal  property,  and  damages  are  proved,  but  not 
the  amount,  judgment  should  be  for  the  plaintiff,  with  nominal 
damages.'^  But,  in  a  summary  proceeding  under  a  penal  statute, 
nominal  damages  are  not  recoverable.^ 

§  1  a.  In  late  English  cases  it  is  held,  that,  on  an  inquiry 
whether  any  and  what  damage  has  accrued  from  the  unlawful 
use  of  a  trade-mark,  the  plaintiff  must  prove  special  damage ; 
and  it  will  not  be  presumed  that,  but  for  such  use,  the  plaintiff 
would  have  sold  the  amount  of  goods  sold  by  the  defendant.*-^  So 
an  action  cannot  be  maintained  against  one  who  digs  a  well  near 
the  land  of  another,  which  thereby  is  caused  to  sink,  and  a  build- 

•  Wiikelin  v.  Morris,  2  F.  &  F.  26.  «  Pastorius  v.  Fislier,  1  Eawle,  27. 
'^  Smith    V.    Huizar,   25   Tex.  (Supp.)  ''  Brown  i\  Emerson,  18  Mis.  103. 

205.  8  Hamilton  ?•.  Ward,  4  Tex.  356. 

3  Lay  V.  Bayles,  4  Cold.  246.  s  Leatlier,  &c.  v.  Hir.«clifield,  LawTJep. 

*  Southern  v.  Kendrick,  40  Miss.  374.  1  Eq.  2U"J  ;  Amn.  Law  Hev.,  Oct.  1866,  p. 
5  Cory  V.  Silcox,  6  Ind.  39.  170. 

(a)  Li  an  action  for  not  entering  satis-  action  for  general  average,  and,  the  jury 
faction  of  a  paid  judjrment,  tlie  jur}'  may  Leing  about  to  render  a  general  verdict 
give  more  tlian  nominal  damages,  al-  for  the  ilefendant.  l)ecause  tiiey  could  not 
though  tliere  was  no  evidence  of  special  ascertain  any  definite  sum  as  the  plain- 
damage.     Allen  V.  Conrad,  51  Penn.487.  tiff's  proportion,  a  nonsuit  was  taken',  and, 

(/))  It  is  said  (2  Greenl.  Ev.  210,  255),  on  motion,  the  court  ordered  a  verdict  for 

"If  they  (the  jury)  are  unable  to  apree,  the  plaintiff,  with  (id.  damages.) 

and  till'  plaintiff  has  evidently  sustained  Wliere   a  case  is   submitted  upon  an 

some  (himages,  tlie  court  will  permit  him  agreed  statement  of  facts,   but    without 

to  take   a   verdict  for   a  nominal  sum."  agreement  respecting  damages,  the  plain- 

(Tliis,  however,  cannot  be  regarded  as  the  tiff  can  recover  only  nominal  damages, 

prevailing  rule.     The  case  cited  is  Feize  McAneany  v.  Jewett,  10  Allen,  151. 
V.  Thompson,  1  Taun.  121.     This  was  an 


556  DAMAGES.  [book   V. 

ing,  not  twenty  years  old,  to  fall;  if  without  the  building  the 
land  would  have  sunk,  but  without  appreciable  damage.^ 

§  2.  Mitigation  or  reduction  of  damages  is  a  subject  which  gives 
rise  to  very  nice  and  numerous  questions. 

§  3.  Recoupment  is  a  familiar  mode  of  reducing  damages. 
Recoupment  is  defined  as  "  the  right  and  the  act  of  making  a  set- 
off, defalcation,  or  discount,  by  the  defendant,  to  the  claim  of  the 
plaintiff."  2  Recoupment  is  distinguished  from  set-off,  as  being  a 
reduction  of  the  claim  upon  which  the  action  is  founded  ;  while 
the  term  set-off  is  applicable  only  to  a  claim  which  grows  out  of 
an  independent  transaction.^  (a)  Thus,  in  an  action  to  recover 
back  advances  made  by  the  plaintiff  on  cotton  delivered  him  by 
the  defendant,  where  the  cotton  had  been  destroyed  by  fire  : 
if  the  defendant  would  be  entitled  to  damages  of  the  plaintiff  for 
the  loss  of  the  cotton,  he  may  recoup  such  damages;  and,  for  this 
purpose,  may  prove  the  destruction  of  the  cotton,  and  the  manner 
in  which  it  occurred.^  So  in  an  action  on  a  note,  given  in  consid- 
eration that  certain  premises  should  be  surrendered  in  as  good 
condition  as  when  received,  damages  done  to  the  premises,  after 
the  contract  and  before  the  surrender,  may  be  recouped.^  So,  in 
an  action  by  an  agent  against  his  principal,  to  recover  compensa- 
tion for  services,  the  principal  may  set  off  any  damages  he  may 
have  incurred,  in  consequence  of  any  action  of  the  agent  in  refer- 
ence to  the  subject-matter  of  his  agency,  after  his  authority 
ceased.^  So,  in  an  action  for  foreclosure  of  a  mortgage,  with  a 
note,  to  secure  rent ;  the  defendant  may  recoup  his  claim  for  mis- 
representations as  to  the  quantity  and  productiveness  of  the  farm 
leased.'^  So  in  a  suit  upon  notes,  given  in  consideration  of  a  sale 
of  land  under  misrepresentations  and  concealments,  the  pur- 
chaser may  set  off  damages  for  such  misrepresentation,  to  be 
determined  by  the  jury.^     So  damages,  on  account  of  a  lessor's 

1  Smith  i\  Thackerah,LawRep.  1  C.  P.  lett,  ib.  361 ;  Grand,  &c.  v.  Knox,  20  Mis. 

564;    Amn.   Law    Rev.,   Jan.    1867,   p.  433. 

297.  3  Avery  v.  Brown,  31  Conn.  393. 

2  Bouvier's  Law  Diet.,  "Recoupe."  See  *  Hatchett  v.  Gibson,  13  Ala.  587. 

Keyes  v.  Western,  &c.,  34  Verm.  81 ;  King  5  Streeter  r.  Streeter,  43  111.  15.5. 

V.  Woodbridge,  ib.  565 ;  McLure  v.  Hart,  «  McEwen  v.  Kerfoot,  37  111.  530. 

19  Ark.   119;  Stow  v.  Yarwood,   20  111.  1  Avery  v.  Brown,  31  Conn.  393. 

597  ;  Gilmore  t- .  Cook,  33  Mis.  25 ;  Snow  »  McFarland  v.  Carver,  34  Mis.  195. 
V.  Carruth,  Sprague,  324 ;  Nichols  v.  Trem- 

(a)  Damages  not  alleged  to  be  due  and  unpaid  cannot  make  a  set-off.     Lemon  v. 
Stevenson,  36  lU.  49. 


CH.    II.]         AMOUNT   OF   DAMAGES,    NOMINAL   DAMAGES,    ETC.  557 

misrepresentations  as  to  the  capacity  or  condition  of  a  mill  on  the 
premises,  may  be  set  off  in  an  action  of  covenant  for  rent.^  So 
where  the  defendant  set  up,  in  recoupment,  damages  sustained 
by  false  representations  made  in  negotiation  for  an  exchange  of 
lands;  it  is  proper,  as  affecting  the  true  measure  of  the  plaintiff's 
damages,  to  ask  the  dcfendanl's  witness,  "  What  estimate  was 
placed  upon  the  property  received  by  defendant,  and  the  prop- 
erty transferred  to  the  plaintiff,  at  the  time  the  contract  was 
made?"  In  such  case,  on  proof  of  false  representations  as  to 
the  quantity  of  land,  the  measure  of  the  defendant's  damages  is  the 
contract  price,  and  interest,  of  the  deficit,  —  not  the  value  at  the 
time  of  contract  and  interest.^  So,  under  the  (Ind.)  Code,  a  defend- 
ant may  set  up  fraud  or  breach  of  warranty,  by  way  of  counter- 
claim, and  recover  any  damage  greater  than  the  plaintiff's  claim.^ 
So,  in  an  action  for  pasturing  cattle  and  sheep,  it  appeared  that 
there  was  a  contract  fixing  the  price  by  the  week  for  the  season, 
but  no  express  stipulation  as  to  the  manner  in  which  the  animals 
should  be  kept,  or  as  to  the  care  the  plaintiff  should  take  of  them  ; 
that  the  plaintiff's  rams  got  with  the  defendant's  ewes  in  the 
latter  part  of  August,  and  consequently  sixty  of  the  ewes  had 
lambs  in  midwinter,  and  that  fifty-six  of  the  lambs  died  "by 
reason  of  so  unseasonable  a  birth."  Held,  the  plaintiff  did  not 
exercise  proper  care,  and  the  defendant  could  recoup  the  dam- 
ages sustained  in  consequence.  The  contract  was  entire,  as 
the  cattle  and  wethers  were  safely  kept,  though  the  defendant 
might  recoup  his  whole  damage.'* 

§  4.  But  recoupment  can  never  be  pleaded  in  bar.^  And  evi- 
dence to  prove  damages,  by  way  of  recoupment,  is  not  competent, 
where  no  claim  to  such  recoupment  is  set  up  in  the  answer.*"  So 
where  A  contracted  with  B  to  build  a  steamboat,  and  have  it  com- 
pleted at  a  certain  time ;  the  price  to  be  paid  in  instalments  ;  and 
the  vessel  was  not  delivered  until  two  months  after  the  agreed  time, 
but  B  made  no  objections  at  the  time  of  delivery:  in  an  action 
by  A  for  that  part  of  the  purchase-money  which  remained  unpaid, 
held,  B  could  not  recoup  the  amount  which  he  lost  as  freight 
during  the  two  months ;  because  the  damages  were  speculative.' 

1  Cafie  r.  Phillips,  38  Ala.  382.  5  Birdsall  v.  Perego,  5  Klatchf.  C.  C. 

'■J  llallam  v.  Todliiintcr,  24  Iowa,  166.  251. 

8  Love  V.  Oklliain,  22  Iiid.  51.  «  Crane  v.  Ilardnian,  4  E.  D.  Smith, 

4  Phelps  I'.  Paris,  3'J  Vt.  511.  448. 

•  ^  Taylor  v.  Maguire,  12  Mis.  313. 


558  DAMAGES.  [book   V. 

So,  in  an  •  action  by  one  partner  against  his  copartner,  for  money 
loaned  upon  a  contract  distinct  from  the  partnership,  the  defend- 
ant cannot  recoup  damages  growing  out  of  the  partnership. ^ 
So  a  defendant  cannot  recoup  money  obtained  from  him  by 
duress,  unless  it  was  legal  duress.^  So  the  plaintiffs  agreed  with  a 
town  to  build  piers  for  a  bridge,  to  be  completed  before  a  cer- 
tain time  ;  but  failed  to  complete  the  work  within  the  time  agreed, 
whereby  individual  inhabitants  were  subjected  to  expense  and 
inconvenience.  Held,  in  a  suit  for  the  price,  the  defendants 
could  not  recoup  these  damages.^  So  in  case  of  an  executed 
sale,  by  executors,  of  the  property  of  their  testator,  the  purchaser 
making  no  offer  or  attempt  to  rescind ;  in  an  action  for  the  pur- 
chase-money, he  cannot  avail  himself  of  false  and  fraudulent 
representations,  made  by  them  at  the  time  of  sale,  in  respect  to 
its  subject-matter,  either  as  a  defence,  or  by  way  of  recoupment 
or  counter-claim.  His  remedy,  if  any,  is  against  them  personally.^ 
So,  in  an  action  for  injuries  done  to  hogs,  which  had  broken  into 
the  defendant's  inclosure,  the  defendant  cannot  recoup  for  dam- 
ages done  to  his  crop  by  the  hogs,  when  it  is  shown  that  his  fence 
was  not  a  "  lawful  fence,"  agreeably  to  the  statute.^  And  where 
A  hired  slaves  of  B,  and  gave  his  note  therefor,  and  C,  as  coro- 
ner, took  the  slaves  on  execution,  and,  in  a  suit  by  B  on  the  note, 
A  elected  to  recoup  the  damages  he  had  sustained ;  held,  A  had 
thereby  precluded  himself  from  suing  for  damages  for  the  loss 
of  the  hire  of  the  slaves,  but  might  still  maintain  an  action  for 
a  trespass,  which  could  not  have  been  recouped  in  the  former 
action.*" 

§  5.  Action  upon  a  bond  to  procure  the  discharge  of  a  vessel 
attached  to  enforce  a  lien  for  repairs.  The  defendants  claim  to 
recoup  for  delay  in  repairing.  Held,  the  measure  of  damages 
was  not  the  probable  profits  of  the  vessel,  but  the  rent  or  price 
which  would  have  been  paid  for  the  charter,  as  the  vessel  was 
used  or  chartered  at  the  time." 

§  6.  There  are  other,  less  technical,  grounds  of  deduction  from 
the  damages  proved  on  the  part  of  the  plaintiff",  sometimes  depend- 

1  Taylor  v.  Hardin,  38  Ga.  577.  5  Woodward  v.  Purdy,  20  Ala.  379. 

2  Haskin  v.  Haskin,  41  111.  197.  6  McLane  v.  Miller,  12  ib.  643. 
'  Kinne  v.  New  Haven,  32  Conn,  210.  "^  Rogers  v.  Beard,  36  Barb.  31. 
4  Westfall  V.  Dungan,  14  Ohio  (N.  S.), 

276. 


CH.    II.]  AMOUNT    OF   DAMAGES,   NOMINAL    DAMAGES,    ETC.  559 

ing  upon  express  statute,  (a)  Thus,  in  Kentucky,  §  152  of  the 
Code  authorizes  a  counter-claim  on  behalf  of  one  of  several  defend- 
ants, to  be  set  up  in  answer  to  the  action  ;  but  such  counter- 
claim must  be  a  cause  of  action  arising  out  of  the  transaction  set 
forth  in  the  petition,  or  be  connected  with  the  su])ject  of  the 
action.  Where  the  petition  states  the  occupation  of  the  land, 
pending  an  injunction  against  the  execution  of  a  judgment  for 
restitution,  and  claims  damages  therefor  ;  any  interference  by  the 
plaintiff,  rendering  such  occupation  less  profitable  or  less  valuable 
to  the  occupant,  even  though  amounting  to  a  trespass  or  other 
tort,  is  a  good  counter-claim,  and  the  taking  of  the  growing  crop 
by  the  plaintiff  is  a  good  defence  to  the  demand  of  rent  for  that 
year,  and  siiall  go  in  redaction  of  damages,  claimed  for  the  with- 
holding of  the  possession  for  that  year.  But,  as  the  injunction 
protects  the  occupant  during  its  pendency,  and  the  injunction 
bond  secures  the  other  party  for  rent  during  the  occupancy,  the 
occupant,  when  his  original  entry  is  lawful,  is  a  quasi  tenant 
during  the  pendency  of  the  bond  ;  and,  as  the  duration  of  this  is 
uncertain,  he  is  entitled  to  emblements,  and  the  taking  and  dis- 
posing of  them  by  the  plaintiff,  when  he  obtained  possession, 
constituted  a  good  counter-claim  under  the  Code.^  (6) 

§  7.  Action  for  damages,  occasioned  by  the  filling  up  by  the 
defendants  of  their  land,  lying  adjacent  to  that  of  the  plaintiffs, 
whereby  the  free  flow  of  water  off  the  plaintiff's  land,  as  formerly 
existing,  had  been  obstructed.  Instructions  to  the  jury,  that 
"  they  should  take  into  consideration  the  evidence  on  both  sides 
bearing  on  this  point,  and,  if  they  were  satisfied  that  the  filling 
up  had  actually  benefited  the  plaintiff's  estate  in  any  particular, 

1  Tinsley  v.  Tinsley,  15  B.  Mon.  454. 

(a)  As  to  the  set-off,  in  assumpsit,  of  mitted  to  give  evidence  of  such  freezing, 

damages  tor  not  deUvering  ail  tlie  goods  Held,  evidence  was   admissible  tliat  the 

contracted  for;  see  Fisiiell  v.  Winans,  38  potatoes  froze  by  tlieir  default.     Starbird 

Barb.  1'20.  v.  Barrons,  38  N.  Y.  230. 

(/')  As  to  rniiiiter-claiin  in  Oliio  and  New  A  release  of  a  co-trespasser  is  adnussi- 

York,  see  Wiswell  v.  First,  &c.,  14  Ohio  ble  as  evidence  of  some  i)aymcnt  by  the 

St.  31  ;    Barhyte   v.    Hughes,   33    Barb,  party  to   whom  it  was  given  ;  and,   if  it 

320;  Tyler  (^  Willis,  ib.  327.  purport  to  acknowledge  full  satisfaction, 

The  plaintiff,  owner  of  a  canal-boat,  unless  rebutted,  it  reduces  the  damages 
contracted  with  the  defendants  to  carry  to  a  nominal  sum.  If  rebutted  so  far  as 
their  potatoes,  and  brought  an  action  to  to  show  that  tiiere  was  no  full  satisfac- 
recover  damngos  in  i)art  for  delay  in  load-  tion,  the  damages  will  be  reduced  to  the 
ing  and  unloading  his  boat.  The  defend-  e.xtent  that  it  was  payment.  Chamber- 
ants  set  up  a  counter-claim  for  loss  on  lin  u.  Murphy,  41  Verm.  110. 
frozen  and  rotten  potatoes,  and  were  per- 


560  DAMAGES.  [book   V. 

they  would,  in  assessing  the  damages,  make  an  allowance  for 
sucli  benefit,  and  give  the  plaintiff  such  sum  in  damages  as  they 
found  upon  the  evidence  would  fully  indemnify  and  compen- 
sate him  for  all  the  damage  he  had  actually  sustained."  Held 
correct.^ 

§  8.  Against  a  claim  for  mesne  profits,  the  value  of  the  improve- 
ments made  by  the  defendant  is  a  fair  set-off,  provided  he  took 
possession  of  the  premises  bond  fide.  Trespassers  are  not  entitled 
to  the  benefit  of  this  principle,  except  where  the  profits  have  been 
increased  by  the  repairs  or  improvements.  In  that  case,  it  is 
proper  for  the  jury  to  take  into  consideration  the  improvements 
or  repairs,  and  diminish  the  profits  by  that  amount ;  but  not 
below  the  sum  which  the  premises  would  have  been  worth  with- 
out them.  Whether  the  defendants  are  trespassers,  is  a  question 
for  the  jury .2 

§  9.  In  case  of  obstruction  of  a  road  by  a  railroad,  any  benefit 
accruing  to  the  plaintiff  from  the  railroad  may  be  shown  in  miti- 
gation of  damages.^  So,  in  estimating  the  damages  of  locating  a 
railroad  over  land,  and  filling  up  an  adjacent  canal  in  which  the 
owner  had  a  privilege  :  the  jury  may  properly  be  instructed,  that, 
if  the  value  of  the  remaining  land  was  so  increased  in  conse- 
quence of  some  peculiar  advantages  conferred  upon  it,  not  shared 
by  neighboring  estates  not  lying  upon  the  canal,  that  the  remainder 
of  the  land  was  worth  as  much  as  the  whole  lot  previously,  the 
owner  has  no  claim  for  damages;  though  they  are  further 
instructed,  that  the  benefit  to  be  set  off  is  some  increased  value 
of  the  estate,  in  consequence  of  becoming  better  adapted  to,  and 
more  valuable  for,  some  specific  purpose  than  the  other  estates 
where  the  land  had  not  been  taken,  and  illustrations  of  such 
benefits  are  given.* 

§  10.  In  tort  for  conversion  of  machinery  in  a  workshop,  con- 
sisting merely  in  refusal  to  allow  a  removal,  without  appropriation 
to  the  defendant's  own  use,  removal,  or  actual  possession,  except 
by  rightful  possession  of  the  shop  ;  the  defendant  may  set  up,  in 
mitigation  of  damages,  a  notice  to  the  plaintiff  that  he  had  relin- 
quished all  claim  to  the  machinery.^ 

§  11.  The  general  rule,  that  the  value  of  property  wrongfully 

1  Luther  v.  Winnisimmet  Co.,  9  Cush.         3  Porter  v.  North,  &c.,  33  Mis.  128. 
171.  4  Whitmans.  Boston,  &c.,  7  Allen,  313. 

-  Beverly  v.  Burke,  9  Geo.  440.  5  Delano  v.  Curtis,  ib.  470. 


CH.    11.]         AMOUNT   OP   DAMAGES,    NOMINAL   DAMAGES,    ETC.  561 

taken  shall  be  the  measure  of  damages  in  an  action  by  the  owner, 
may  be  controlled  by  circumstances,  which  make  this  too  large  a 
measure,  and  require  an  equitaldc  deduction.  Thus  a  party 
distrained  growing  corn  for  lent,  and  tiie  proceedings  to  enforce 
the  distress  resulted  in  favor  of  the  defendant.  I'eiiding  tlicse 
proceedings,  the  plaintilf  caused  the  corn  to  be  harvested.  Held, 
in  an  action  of  trespass  against  him.  for  distraining,  he  might 
recoup  tlie  expense  of  harvesting.'  So,  in  an  action  for  unlawful 
seizure  of  goods  during  their  manufacture,  evidence  is  admis- 
sible to  show  how  much  it  would  cost  to  complete  them  for  the  niar- 
ket.2  So  in  an  action  to  i-eoover  a  portion  of  a  mining  claim,  and 
damages  for  wrongfully  removing  the  gold  therefrdm,  evidence 
is  admissible,  by  way  of  lessening  the, damages,  of  the  expense  of 
digging  the  gold-bearing  earth  frora  the  claira.^  So,iA  a  suit  to 
establish  the  right  to  coal  mines,  it  appeared  that  they'belonged 
to  the  plaintiff,  but  that  the  defen^^ant,  the  owner  of  adjoining 
mines,  had  worked  them,  bona  fide.  .Held,  the  defendant  should 
be  allowed  the  cost  of  obtaining  th^  coals,  paying  only  the  fair 
value,  as  if  he  had  purchased  the  mine  from  the  plaintiff.^  So,  in 
an  action  to  recover  damages  for  an  entry  on  a  mining  claim,  and 
taking  away  gold-bearing  earth  ;  the  trespass  not'  being  wilful,  the 
measure  of  damages  is  the  value  of  the.  earth  at  the  time  it  was 
separated  from  the  surrounding  soil,  estimated  by  deducting  tl>e 
expense  of  extracting  the  gold  from  the  value  of  the  gold  itself.^ 
So,  where  the  creditor  of  a  husliand  took  certain  property,  belong- 
ing to  the  trust  estate  of  his  wife,  on  execution  against  him,  and 
the  husband  bid  off  such  property  for  the  trustees,  when  it  was 
sold  at  the  port,  paying  less  for  it  than  its  value:  hold,  in  an 
action  of  trover,  brought  by  the  trustees  against  the  creditor, 
that  proof  of  such  fact  was  admissible  in  mitigation  of  damages ; 
the  real  damage,  which  was  the  sum  paid  at  the  port,  furnishing 
the  rule  of  damages. **  So,  in  an  action  by  the  mortgagee  of  goods 
against  an  ofBcer  who  has  taken  a  portion  of  them  as  the  mort- 
gagor's, the  defendant  may  show,  on  the  question  of  damages, 
that  the  plaintiff  has  received  his  debt  out  of  the  other  goods." 
So  that  property  taken  by  a  trespasser  has  been  levied  upt)n  and 

J  Bates  )•.  Courtwri^Mit,  3G  111.  518.  &  IMaye  v.  Tappan,  23  Cal.  306. 

2  Kmmons  v.  Westtield,  97  Mass.  230.  «  Bahlwin  v.  I'orter.  12  Conn.  473. 

3  (ioUer  V.  Felt.  30  Cal.  481.  «   Ward  v.  Henry,  15  Wis.  23U. 
■»  Hilton  V.   Woods,  Law   Kep.  4  Eq. 

432. 

36 


562  DAMAGES.  [book   V. 

sold  under  procesR  against  the  owner;  is  admissible  in  mitigation 
of  damages.^     And  altliougli,  in  an  action  of  trespass  for  taking 
goods,  if  the  plaintiff  is  liable  over  for  them,  he  may  recover  their 
full  value  ;  yet  the  defendant  may  show,  in  mitigation  of  damages, 
under  the  general  issue,  that  the  goods  at  the  time  of  the  letting 
belonged  to  a  third  person,  and  that  the  plaintiff  was  not  liable 
for  them  to  the  owner.^     Or,  that  the  goods  did  not  belong  to  the 
plaintiff,  and  that  they  have  gone  into  the  hands  of  the  owner,  or 
been  taken  f)r  his  debts.'^     (See  §  15.)     So,  in  trover,  it  may  be 
siiown,  in    mitigation   of  damages,  that  the   goods  were  not  the 
plaintiff's,  and  have  gone  to  the  owner's  use.     ''  The  reason  why 
a   party  having   possession  should   maintain  trespass  is,  that  he 
may  have  sustained  injury  by  being  deprived  of  the  goods  ;  nor 
should  his  claim  to  damages  be  construed  strictly.    Ordinarily,  he 
is  either  the  owner  or  answerable  over  to  the  owner  ;  and  in  either 
case  he  is  entitled  not  only  to  damages  for  the  taking,  but  also 
for  the  value  of  the  goods.  .  .  .  But  here  .  .  .  the  plaintiff  is  not 
answerable  over.     The  real  damage  sustained  by  him  arises  from 
the  injury  to  his  special  property."  *     So  where  a  purchaser  of 
property  brings  an  action  against  an  officer,  who  seizes  and  sells 
it  upon  an  execution  against  the  former  owner;  if  it  appears  that 
he  himself  bought  the  property  at  the  execution  sale,  and  remained 
in  possession,  the  value,  with  interest,  is  not  the  measure  of  dam- 
ages, but  the  sum  bid  at  the  sale,  with  interest.^     So  where  the 
purchaser  of  a  vessel  from  B,  who  bought  it  of  A,  sued  an  officer 
for  taking  it  without  legal  process,  although  he  subsequently  sold 
it  on  a  fi.  fa.  against  B  and  C,  as  the  property  of  B  ;  held,  the 
defendant   might  show,  in  mitigation  of  damages,  that  the   pro- 
ceeds were  applied  to  the  satisfaction  of  the  judgments  against  B 
and  C.     Also,  as  foundation  for  this  proof,  that  the  sale  by  B  and 
A  was  fraudulent  as  to  the  creditors  of  B.^    So  in  an  action  against 
an  oflScer,  for  attaching  goods  of  the  plaintiff  upon  a  writ  against 
the  vendor  of  the  goods,  who  became  an  insolvent  debtor  shortly 
after  the  attachment;  the  fact,  that  the  sale  was  fraudulent  and 
void  as  against  the  assignees   in   insolvency,  and  that  the  goods 
were  delivered  to  them,  may  be  shown  in  mitigation  of  damages.^ 

1  Bates  V.  Courtwright,  36  111.  518.  &  M'Inroy  v.  Dyer,  47  Penn.  118. 

2  Anthony  v.  Gilber"t,  4  Blackf.  348.  ^  CJotton  v.  Reed,  2  Wis.  4-58. 

3  Criner  v.  Pike,  2  Head,  398.  ^  Leggett  v.  Baker,  13  Allen,  470. 
*  Squire  v.    Hollenbach,   9  Pick.  5-51, 

552. 


CH.  II.]   AMOUNT  OF  DAMAGES,  NOMLNAL  DAMAGES,  ETC.       563 

So  where,  upon  a  wrongful  tax  sale,  the  owner  purchases  the 
property,  in  an  action  for  dam  ii^es,  the  amount  of  the  tax  must  be 
deducted. 1  So  in  trespass  and  trover  against  a  collector  for  the 
value  of  a  horse  wrongfully  distrained  for  taxes  ;  the  plaintiff, 
having  procured  the  horse  to  be  bid  off  for  himself,  and  apj)ropri- 
ated  him  to  his  own  use,  can  recover  only  what  lie  was  compelled 
to  pay  for  him.^ 

§  12.  And  the  same  general  point  is  hypothetically  illustrated 
by  Chief  Justice  Shaw,  as  follows:  ''  A  factor  has  a  lien  on  goods 
to  half  their  value.  The  principal  becomes  bankrupt,  and  the 
property  vests  in  his  assignees,  subject  of  course  to  all  legal  liens. 
The  assignees,  denying  and  intending  to  contest  the  factor's  lien, 
get  possession  of  the  goods  and  convert  them.  The  factor  brings 
trover,  establishes  his  lien,  and  recovers.  How  shall  damages  be 
assessed?  If  he  recover  the  full  value  of  the  goods,  he  will  be 
responsible  directly  back  to  the  defendants  themselves  for  a 
moiety  of  the  value.  To  avoid  circuity  of  action,  why  should 
not  damages  be  assessed  to  the  amount  of  his  lien  ?  He  is  fully 
indemnified,  the  balance  of  the  value  is  in  the  hands  of  those 
entitled  to  it,  and  the  whole  controversy  is  settled  in  one 
suit."  3 

§  13.  Upon  a  similar  principle  it  is  held,  that,  in  an  action  for 
conversion  of  a  promissory  note,  the  insolvency  of  the  maker 
may  be  proved  in  mitigation  of  damages.*  So  where  a  carrier, 
having  a  lien  for  freight,  wrongfully  sells  the  goods,  the  measure 
of  damages  is  the  market  value,  deducting  the  amount  of  tlie  lien, 
though  not  the  expenses  of  making  the  sale,  which  was  an  unlaw- 
ful act.^ 

§  13  a.  In  an  action  of  trespass  for  removing  a  fence,  the  plain- 
tiff" c\i\.\ra\ng  exemplary  damages;  held,  the  defendants  might,  in 
mitigation  of  exemplary  damages,  introduce  evidence-  that  they 
were  acting  in  pursuance  of  a  vote  of  the  town.^  So  in  an  action 
for  injuries  to  the  person,  resulting  from  the  burstingof  a  steamboat- 
boiler  through  the  negligence  and  unskilfulness  of  the  engineer, 
the  complaint  having  charged  that  the  engineer  was  "  unlicensed  ;  " 
held,  the  defendant  might  prove  that  he  was  a  competent  engineer, 
to  rebut  evidence  tending  to  show  a  flagrant  violation  of  duty  in 

1  Alexiinder  r.  Ilelbcr,  35  Jlis.  334.  •*  Latham  v.  Brown,  10  lown,  118. 

2  Hmlhurt  r.  Green,  41  Vt.  4U0.  5  Briggs  v.  Boston,  &c.,  G  Allen,  246. 
»  Chaniberliu  v.  IShaw,  18  Tick.  283.             6  (_jray  v.  Waterman,  40  111.  522. 


6G4  DAMAGES.  [book   V. 

employing  him,  and  thereby  keep  down  vindictive  damages. ^  So 
in  trespass  by  the  occupant  against  the  owner,  for  the  wrong- 
ful invasion  of  liis  possession,  the  title  of  the  defendant  should 
be  considered  in  mitigation  of  exemplary  damages.  The  gra- 
vamen of  the  action  is  the  trespass  to  the  person,  goods,  and 
chattels  of  the  tenant.  He  cannot  recover  for  damages  to  the 
real  estate.^  So,  where  exemplary  damages  are  claimed  for 
gross  negligence  or  recklessness,  evidence  is  admissible  tending 
to  explain  the  circumstances  relied  on  to  aggravate  the  dam- 
ages.^ 

§  13  b.  Upon  a  hearing  in  damages  after  demurrer  to  a  dec- 
laration for  negligence,  the  defendant  may  show,  for  the  purpose 
of  reducing  the  damages  to  a  nominal  sum,  that  the  plaintiff  was 
guilty  of  negligence  directly  contributing  to  the  injury.* 

§  13  c.  On  execution  of  a  writ  of  inquiry,  after  judgment  by 
default  in  an  action  for  levying  on  an  execution  against  A,  the 
defendant  can  show,  in  mitigation  of  damages,  that  at  the  time  of 
and  before  the  levy  the  property  was  in  the  possession  of  A  ; 
also  that  the  plaintiff  was  not  the  owner,  that  fact  not  being  neces- 
sarily inconsistent  with  the  right  to  possession  :  but  he  is  estopped 
by  the  judgment  from  showing  that  the  plaintiff  had  not  such  a 
title  as  would  authorize  a  recovery.^ 

§  14.  There  are  many  cases,  however,  where  no  such  claim  of 
an  alleged  equitable  deduction  from  the  value  will  be  allowed. 
Thus,  in  an  action  of  trespass,  brought  by  B  against  A,  for  taking, 
by  attachment,  B's  growing  grass  ;  the  expenses  of  cutting,  cur- 
ing, and  storing  the  hay,  though  included  in  the  costs  taxed 
against  B,  in  the  suit  brought  by  A  against  B,  and  collected  and 
applied  on  the  execution,  shall  not  be  deducted  from  the  value  of 
the  hav,  as  damages.^  So  where  a  slave,  confined  in  jail  for  rape 
and  murder,  was  taken  out  and  hung  by  the  defendants :  it  was 
held,  that  the  measure  of  damages  was  not  what  any  particular 
person  would  give  for  him,  if  this  charge  were  true,  but  his 
market-value,  determined  from  age,  appearance,  and  health  ;  also, 
that  from  motives  of  public  policy  the  jury  might  give  vin- 
dictive damages.'     So  A,  having  recovered  in  ejectment  against 


1  Fay  V.  Davidson,  13  Minn.  523.  5  Sterretti).  Kaster,  1  Ala.  (S.  C.)  404. 

2  Keeder  v.  Purdv,  41  111.  279.  ^  Benjamin  v.  Benjamin,  15  Conn.  347. 
8  Millard  v.  Brown,  35  N.  Y.  297.  '^  Polk  i'.  Fancher,  1  Head,  336. 

*  Daily  v.  New  York,  32  Conn.  356. 


CH.    11.]        AMOUNT    OF    DAMAGES,    NOMINAL    DAMAGES,    ETC.  565 

B,  sued  him  for  mesne  profits,  and  obtained  judj^ment  on  demurrer. 
While  that  suit  was  pending,  B  brouglit  an  ejectment  against  A 
for  the  premises,  and  recovered.  On  A's  executing  his  writ  of 
inquiry,  held,  B  could  not  offer  his  judgment  in  evidence  in 
mitigation  of  damages,  the  record  not  showing  the  date  of  the 
demise,  and  that  B's  title  had  commenced  before  A's  cause  of 
action. 1  So,  in  trespass  for  assault  and  battery,  the  circumstance, 
that  the  defendant  entered  the  house  for  the  purpose  of  making 
an  attachment,  is  not  admissible  in  evidence  in  mitigation  of  dam- 
ages. "It  ought  rather  to  aggravate  the  damages;  for  the  defend- 
ants had  no  legal  right  to  break  open  a  dwelling-house  for  such  a 
purj^ose,  and  it  was  an  abuse  of  legal  process."^  So,  in  an  action 
of  trespass,  it  is  a  correct  instruction  to  the  jury,  that  one  could 
Dot  trespass  upon  another's  rights,  and  allege  in  defence  that  there 
was  no  market  for  the  property  taken,  or  that  it  was  on  that 
account  of  less  value,  but  the  measure  of  damages  was  the  full 
and  fair  value  of  the  property  ;  that  if,  at  the  time  of  the  trespass, 
the  market  was  depressed,  too  much  importance  should  not  be 
given  to  that  fact,  and  that  to  the  trespasser  must  be  meted  out 
an  assessment  in  damages  commensurate  to  the  injury  he  had 
done.  "  If  at  any  particular  time  there  be  no  market  demand  for 
an  article,  it  is  not  of  course,  on  that  account,  of  no  value.  What 
a  thing  will  bring  in  the  market  at  a  given  time  is  perhaps  the 
measure  of  its  value  then,  but  it  is  not  the  only  one."  ^ 

§  14  a.  So  although  a  steamboat  was  lying  up  as  unriverworthy 
at  the  time  of  a  tortious  sale  by  a  sheriff,  the  owners  may  recorer 
her  actual  value  as  property.'*  So  in  detinue,  under  the  plea  of 
the  general  issue,  where  the  plaintiff  claims  under  a  mortgage, 
evidence  of  a  sale  of  the  property  under  the  mortgage  by  the 
plaintiff  and  its  purcliase  by  the  defendant,  after  the  plaintiff" 
had  acquired  possession  under  the  statutory  bond  given  by  him  in 
the  action,  is  not  competent  for  the  purpose  of  mitigating  the 
damages."  So  liability  for  the  value  of  slaves  wrongfully  appro- 
priated was  held  not  affected  by  the  subsequent  abolition  of 
slavery.^  So  evidence  that  a  coal  mine  is  unworkable  and  dilapi- 
dated is   irrelevant  to   show   the   value   of  the   mining  fixtures, 

1  Biintin  ;•.  Diichane,  1  Hlackf.  255.  *  Crow  v.  State,  23  Ark.  084. 

-  Sampson  i\  Henry,  11  I'iek.  37'J ;  per  ^  Foster  v.  Cliamberlain,  41  Ala.  158. 

Willie,  J.,  ib.  38'J.  «  Calhoun  r.  Burnett,  40  Miss.  5'J9. 

3  Trout  r.  Kennedy,  47  Penn.  387  ;  per 
Strong,  J.,  ib.  393. 


566  DAMAGES.  [book   V. 

machineiy,  and  other  personal  property  tlierein.^  So  a  sale  of 
chattels  was  made,  upon  condition  that  they  should  remain  the 
vendor's  until  paid  for.  The  vendee  subsequently  made  pait  pay- 
ment, and  then  sold  them.  Held,  in  trover  by  the  vendor  against 
the  purchaser  from  his  vendee,  that  the  measure  of  damages  was 
the  value  of  the  property  at  the  time  and  place  of  conversion, 
with  interest,  without  any  deduction  on  account  of  the  partial 
payment.^ 

§  15.  The  return  or  recovery  of  the  property  in  question,  or 
its  appropriation  to  the  use  and  benefit  of  the  owner,  though  not 
eifectual  to  "  purge  the  trespass  or  bar  the  action,"  ^  is  often  set 
up  in  mitigation  of  damages.'^  It  is  said,  in  trover,  "  It  is  quite 
common  for  the  courts  to  make  a  rule,  stopping  the  action  on  a 
redelivery  and  payment  of  costs."  ^  Thus,  in  trover,  where  the 
property  converted  has  been  sold,  and  the  proceeds  applied  to 
the  payment  of  the  plaintiff's  debt,  or  otherwise  to  his  use,  it 
goes  in  mitigation  of  damages.^  (See  §11.)  The  rule  of  damages 
for  conversion  of  a  horse  and  carriage,  which  have  been  returned 
to  the  owner  and  received  by  him,  is  their  market  value  at  the 
time  of  conversion,  less  their  market  value  at  the  time  of  the 
return.'^  So,  in  trover,  for  tortious  taking  of  personal  property 
by  a  collector  of  taxes,  the  proceeds  having  been  applied  in  part 
payment  of  the  taxes,  the  measure  of  damages  is  the  value  of  the 
property  at  the  time  of  the  conversion,  deducting  the  amount  of 
such  payment.^  So  a  railroad,  which  negligently  transported 
slaves  without  authority,  so  that  they  escaped,  was  held  liable 
only  for  the  value  of  their  services  for  the  time  they  were  absent, 
they  having  returned.^  So  in  an  action  of  trespass  against  a 
collector  of  the  customs,  for  seizing  and  detaining  the  plaintiff's 
vessel,  for  a  pretended  breach  of  the  registry  laws  ;  the  vessel 
having  been  restored,  held,  the  difference  between  the  price  at 
which  the  vessel  would  have  sold,  at  the  time  of  seizure,  and  the 
price  for  which  she  actually  sold  at  public  auction,  immediately 
after  her  restoration,  together  with  the  actual  expenses  incurred, 

1  Carey  v.  Bright,  58  Penn.  St.  70.  6  Pierce   v.  Benjamin,   14  Pick.  356  ; 

2  Brown  v.  Haynes,  52  Maine,  578.  Prescott  v.  Wrisjht,  6  Mass.  20 ;  Caldwell 

3  Per  Shaw,  C.  J.,  10  Met.  319.  v.  Eaton,  5  ib.  399. 

*  See  Robinson  v.  Barrows,  48  Maine,  ''  Lucas  v.  Trumbull,  15  Gray,  306. 

186  ;    M'Inroy   v.   Dyer,  47    Penn.  121 ;  8  Pierce  '•.  Benjamin,  14  Pick.  356. 

Sniitli  V.  Perry,  18  Tex.  510.  9  Louisville  v.  Young,  1  Bush,  401. 

5  Stevens  v.  Low,  2  Hill,  132.  Doubted 
in  Sedgwick  on  Damages,  504,  n. 


ch.  il]     amount  of  damages,  nominal  damages,  etc.  567 

with  interest  on  the  amount,  constituted  a  proper  estimate  of 
damage.^  So,  in  an  action  of  trespass  quare  clausum  and  de  bonis, 
against  a  justice,  for  issuing  an  attachment  against  the  goods  of 
the  plaintiff  as  an  absent  or  absconding  debtor,  without  legal 
proof  of  the  fact  of  concealment ;  the  restoration  of  the  property, 
before  the  suit,  to  the  plaintiff,  cannot  be  pleaded  in  bar  of  the 
action,  nor  puis  darrein  continuance,  but  may  be  admitted  as 
evidence  in  mitigation  of  damages.^  So  A,  a  deputy  sheriff, 
levied  an  execution,  against  B,  on  certain  live  stock  and  produce 
on  a  farm  occupied  by  B.  C  forbade  the  sale,  claiming  that  all 
the  property  belonged  to  him,  and,  at  the  sale,  he  bid  in  most 
of  the  stock,  including  a  certain  cow.  A  gave  C  a  bill  of  sale  of 
all  the  property  purchased  by  him,  including  this  cow;  but  refused 
to  take  pay  for  the  cow,  excepting  her  in  the  receipt  at  the  foot 
of  the  bill,  and  reciting  that  the  price  of  her  was  tendered  him 
by  C.  In  an  action  of  trespass,  brought  by  C  against  A,  to 
recover  the  value  of  the  property  sold  by  the  latter,  A  specified 
in  defence,  that,  after  the  sale,  the  cow  was  returned  by  hiiu  to 
C,  and  accepted  by  C  in  full  of  all  damages,  if  any,  he  was  entitled 
to ;  and,  a  verdict  having  been  rendered  for  C  for  the  value  of 
the  property,  including  the  cow,  held,  that  he  could  have  judg- 
ment only  on  condition  that  he  should  remit  expressly  on  the 
record  the  price  of  the  cow,  and  take  judgment  only  for  the  bal- 
ance. '*  The  plaintiflf  has  got  his  cow,  and  also  a  verdict  for  the 
value  of  her.  .  .  .  The  plaintiff,  while  he  has  the  cow  in  his 
possession,  will  take  from  the  defendant,  as  a  trespasser,  the  value 
of  the  cow,  and  then  the  plaintiff,  as  a  purchaser,  will  pay  back 
the  defendant,  as  the  vendor  of  the  cow,  the  same  money.  .  .  . 
What  occurred  .  .  .  was  a  sufficient  acquittance  ...  of  all  claims 
to  the  purchase-money,  so  that  the  plaintiff  .  .  .  would  have  no 
right  of  action  for  the  value  of  the  cow."^ 

§  16.  In  an  action  of  trespass  for  goods,  which  the  plaintiff 
demanded  before  action,  and  the  defendant  promised  to  return, 
but  which  were  attached  on  a  writ  against  the  plaintiff  while  the 
defendant  was  preparing  to  return  them  ;  the  measure  of  damages 
is  the  same  that  it  would  have  been  if  the  defendant  had  returned 
the  goods.*     So  A  brought  trover  against  B,  for  goods  which  A 

1  Woodham  v.  Gelston,  1  Johns.  134.  •'  Long:  v.  Liinikin,  9  Cusli.  3G1 ;  per 

2  Vosburgh  v.  Welch,  11  ib.  ITo.  Fletcher,  J.,  ih.  3(J8. 

*  Kaley  v.  Shed,  10  Met.  317. 


668  DAMAGES.  [book   V. 

had  surreptitiously  taken  from  B,  and  which  had  been  by  con- 
sent of  A  transferred  to  B  as  his,  which  goods  were  afterwards 
levied  upon  as  the  goods  of  A,  by  his  direction.  Held,  A  could 
only  recover  nominal  damages,  if  any  thing,  against  B  for  a  deten- 
tion of  such  goods  ;  and  tliat  the  presumption  was,  in  the  absence 
of  proof  to  the  contrary,  that  the  goods  either  went  to  satisfy  the 
execution,  or  were  returned  to  A.^  But,  in  trespass  for  taking 
the  plaintiff's  only  cow  on  execution,  the  value  of  the  cow  is  the 
measure  of  damages,  though  the  proceeds  of  sale  have  been  applied 
to  tiie  execution.  "  The  provision  exempting  a  man's  only  cow 
from  attacliment  was  intended  for  the  relief  of  the  poor,  and 
ought  to  be  so  construed  as  to  give  all  which  the  legislature 
intended  ;  and  the  value  of  the  cow,  at  least,  ought  in  all  cases  to 
be  given  in  damages.  There  will  then  be  no  inducement  to  a 
creditor  to  take  his  debtor's  last  cow."^  So,  in  an  action  for 
excluding  a  wife  from  her  house,  it  cannot  be  shown,  in  mitigation 
of  damages,  that  the  house  was  obtained  by  fraud  of  her  husband  ; 
more  especially  unless  it  occurred  so  near  the  act  complained  of 
as  to  show  excitement  arising  from  that  cause.^  And  in  trespass 
against  a  sheriff,  for  seizing  and  selling  the  plaintiff's  goods  under 
a  judgment  against  another  person,  the  amount  paid  out  of  the 
proceeds  of  sale  for  rent  of  the  premises  cannot  be  received  in 
evidence  to  abate  the  damages.'^ 

§  16  a.  When  persons,  to  prevent  the  spreading  of  a  fire,  with- 
out legal  authority,  destroy  personal  property  which  is  in  immi- 
nent danger  of  destruction  by  fire ;  the  measure  of  damages  is, 
substantially,  the  value  of  the  property  which  might  have  been 
saved  if  they  had  not  interfered.^ 

§  17.  In  an  action  of  trespass  for  pulling  down  a  building, 
evidence  that  the  building  was  peaceably  taken  down  and  its 
materials  preserved,  in  conformity  with  the  directions  of  the 
commissioners  of  the  townsliip,  during  a  period  of  great  public 
excitement  and  disorder,  with  the  view  of  saving  the  neighbor, 
hood  from  threatened  violence,  is  admissible  in  mitigation  of 
damages.  But  not  that  the  commissioners  had  by  law  the  power 
to  abate  and  remove  nuisances,  and  that  a  grand  jury,  after 
instructions  by  a  competent  court,  presented  the   building  as  a 

1  Perkins  v.  Freeman,  26  111.  477.  •*  Dallam  v.  Fitter,  6  W.  &  S.  323. 

2  Hill  V.  Loomis,  6  N.  H.  263,  264.  5  Parsons  v.  Pettingell,  11  Allen,  507. 
'  Jacobs  V.  Hoover,  9  Min.  204. 


CH.    II.]        AMOUNT   OF   DAMAGES,   NOMINAL    DAMAGES,    ETC.  569 

public  nuisance,  and  recommended  its  abatement.  "  It  sometimes 
happens,  in  the  mountainous  region  of  Pennsylvania,  that  there 
is  no  other  way  of  arresting  the  progress  of  the  flames  and  saving 
property,  but  by  firing  against  the  fire  :  although  those  who  fire 
against  the  fire  are  liable  for  the  actual  damage  .  .  .  they  cer- 
tainly might  ...  in  mitigation  of  damages,  show  that  the  act 
was  .  .  .  induced  by  the  necessity  of  their  situation  to  protect 
their  property  and  that  of  their  neighbors  from  inevitable  destruc- 
tion. Houses  are  frequently  pulled  down  in  towns  and  cities  to 
arrest  the  progress  of  .  .  .  fire."  ^ 

§  18.  In  an  action  against  an  officer  for  negligently  levying 
only  a  part  of  the  execution  debt,  judgment  was  entered  for  the 
whole  debt,  and  the  plaintiff  released  the  part  levied.^ 

1  Reed  v.  Bias,  8  W.  &  S.  189;  per  2  Maccubbin  v.  Thornton,  1  liar.  & 
Burnside,  J.  ib.  I'JO.  M'H.  194. 


570  DAMAGES.  [book   V. 


CHAPTER   III. 

DAMAGES   IN    REFERENCE   TO    TIME. 

1.  General  remark  as  to  time.  9.  Exceptions  to  thie  rule  of  prospective 

2.  Value  of  property  at  the  time  of  taking,     damaajes. 

&c.,  tlie  treneral  measure  of  damages.  10.  Miscellaneous  cases  as  to  the  time  for 

4.  Prospective  or  remote  damages.  which  damages  shall  be  estimated. 

5.  Damages  estimated  to  the  time  of  trial.  1.5.  Damages    resulting   in    part  from  the 
8.  One  recovery  a  bar  to  a  second  action  plaintitf' s  own  fault  or  neglect. 

for  continuing  damage. 

§  1.  The  question  of  time  is  one  of  great  importance  in  settling 
the  amount  of  damages.  It  involves  the  various  inquiries, /ro/?i 
what  time  and  to  what  time  the  damages  are  to  be  estimated ;  at 
what  time  the  valuation  is  to  be  made,  in  case  of  a  change  of  value  ; 
and  especially  in  what  cases  and  upon  what  principles  prospec- 
tive and  contingent  damages  may  be  added  to  those  which  are 
certain  and  imniediate.  The  cases,  as  might  be  expected,  are 
numerous,  various,  and  by  no  means  entirely  reconcilable.  The 
fixed  standards  of  damages,  which  it  has  been  the  prevailing  pur- 
pose and  tendency  to  establish,  must  be  admitted  still  to  have  left 
much  latitude  to  the  discretion  of  a  jury.^ 

§  2.  The  rule  of  damages  for  the  wrongful  taking  of  goods 
is  the  market  value  at  the  time,  not  the  price  paid.^  Thus,  in 
trover,  the  measure  of  damages  is  the  value  of  the  property 
at  the  time  of  conversion,  with  interest  to  the  time  of  trial ; 
as,  for  example,  against  a  bailee;^  or  in  case  of  conversion 
by  sale.'^  And  if  before  conversion  the  plaintiff  as  vendee 
paid  the  defendant  for  the  article,  and  he,  before  trial,  resold 
it  at  an  advanced  price,  the  rule  is  the  same.^  So,  in  trespass 
de  hoii.  aspor.y  the  value  at  the  time  of  taking  is  the  measure  of 
damages.*^  And,  in  trespass  for  severing  and  carrying  away  coal 
from   the  plaintiff's  mine,  the   proper  measure  of  damages,  in 

1  See  Bishop  v.  Williamson,  2  Fairf.  ■*  Dorsett  v.  Frith,  2-5  Geo.  537. 

504;  Story  v.  N.  Y.  &c.,  1  Seld.  85.  &  Kennedy  v.  Whitwell,  4  Pick.  466 ; 

2  King  I'.  Orser,  4  Duer,  431.  Watt  v.  Potter,   2  Mass.   77;   Lillord  v. 
2  Vaughan    v.    Webster,   5    Harring.     Whitaker,  3  Bibb,  92. 

256.  «  Schurdel  v.  Schurdel,  12  Md.  108. 


en.    III.]  PROSPECTIVE    AND    CONTINGENT   DAMAGES.  571 

respect  of  the  coal  taken,  is  its  value  as  soon  as  it  existed  as  a 
chattel,  that  is,  as  soon  as  severed.^  So  for  taking  land  to  widen 
a  street,  tlie  measure  of  damages  is  the  value  of  the  land  at  tiie 
time  of  taking.2  And  damages  caused  by  the  construction  of  a 
canal  must  be  estimated  as  of  the  time  of  such  construction.  A 
subsequent  purchaser  cannot  maintain  an  action  for  injury  done  to 
liiin.'^  So,  in  case  of  a  raih'oad,  the  land  damage  is  predicated 
upon  the  value  at  the  time,  with  interest.'*  So,  on  the  question 
of  fraud  in  the  sale  of  land,  evidence  of  the  value  of  the  land  to 
fix  the  damages  should  be  confined  to  the  time  when  the  sale  took 
place.^ 

§  3.  In  trover,  for  the  capture  and  detention  of  a  cargo,  bound 
to  A,  on  the  high  seas,  the  proper  rule  of  damages  is  the  value  of 
the  cargo,  at  the  time  and  place  of  capture,  estimated  upon  the 
prices  at  A,  with  interest;  and  deducting  a  reasonable  premium 
of  insurance  from  the  place  of  capture  to  A,  also  the  value  of 
such  part  of  the  cargo,  or  of  the  avails  thereof,  as  had  been 
restored.'' 

§  3  a.  In  an  action  against  an  association  for  refusing  to  permit 
a  transfer  of  stock ;  the  measure  of  damages  is  its  actual  value  at 
the  time  of  such  refusal."  (a) 

§  4.  The  general  rule  is  laid  down,  that  prospective  damages 
may  be  recovered,  where  the  cause  accrues  before  the  commence- 
ment of  the  action.^  That,  in  an  action  for  trespass,  the  plaintiff 
may  prove  special  damages,  if  strictly  the  consequence  of  the 
trespass,  or  if  the  act  causing  such  special  damages  constitutes 
part  of  an  entire  transaction,  of  which  the  principal  trespass  was 
the  commencement.^  That,  where  the  act  complained  of  is 
admitted  to  have  been  done  with  force,  and  to  constitute  a  proper 
ground  for  an  action  of  trespass  vi  et  armis,  all  the  damage  to  the 
{)laintiff  of  which  sue!)  injurious  act  was  the  efficient  cause,  and 
for  which  the  plaintiff  is  entitled  to  recover  in  any  form,  may  be 

»  Morgan  v.  Powell,  2  Gale  &  Dav.  s  Gniilden  v.  Sliehee,  24  Geo.  4;]8. 

721.  f  Ilallett  V.  Novion,  14  Jolins.  273. 

2  Parks  V.  Boston,  15  Pick.  198.  "^  Building,  &c.  v.  Sendmeyer,  uU  Penn. 

^  Zimmerman  v.  Union,  &c.,  1  W.  &  67. 
S.  34C..  8  Tarleton  v.  M'Gawlev.  Peake,  205. 

*  Whitman  v.  Boston,  &c.,  7  Allen,  313.  9  Damron  i'.  Roach,  4  "lluiiiph.  134. 

(n)  In  an  action  for  entering  a  mill,  order,   or   the    value    of  tiie    machinery 

and  taking  away  jiortions  of  tiie  macliin-  renioved,  is  not  a  ])n)per  rule  of  damages, 

ery,  necessary   for  oi)erating  the  works  ;  Jolly  v.  Single,  KJ  Wis.  280. 
the  cost  of  restoring  the  mill  to  running 


572  DAMAGES.  [book   V. 

recovered  in  such  action,  altliough,  in  point  of  time,  such  damage 
did  not  occur  till  some  time  after  the  act  was  done.^  Thus,  in  an 
action  for  breaking  a  close  and  removing  timber,  the  deterioration 
of  the  land  may  be  an  element  of  damages.^  So  in  an  action, 
brought  in  1833,  for  harboring  and  conveying  avi^ay  a  slave 
bound  to  serve  until  1837,  damages  might  be  recovered  for  the 
whole  term.^  So  A  pulled  down  the  fence  of  B,  whereby  the 
cattle  of  B  escaped  and  were  lost.  Held,  the  loss  was  strictly 
the  consequence  of  the  trespass,  and  evidence  thereof  admissible 
in  an  action  of  trespass  for  throwing  down  the  fence  and  permitting 
the  cattle  to  escape.*  So,  in  an  action  of  trespass  for  wrongfully 
removing  a  fence,  the  defendant  is  liable  for  injuries  to  crops  by 
cattle  entering  through  the  breach.^  So,  for  making  a  railroad 
through  a  farm,  the  measure  of  damages  is  the  market  value  of 
the  land  taken,  with  an  allowance  for  the  disadvantages  resulting 
from  the  mode  of  dividing  the  farm.^  Evidence  is  admissible  of 
what  the  property  would  have  sold  for,  before  and  after  the  road 
was  made  and  went  into  successful  operation  ;  and  the  difference 
may  be  considered  in  estimating  the  damages."  So,  in  trespass 
for  breaking  down  and  destroying  part  of  a  mill-dam,  damages 
may  be  allowed  for  the  cost  of  repairs,  and  interruption  to  the 
use  of  the  mill,  or  diminution  of  profits  caused  by  the  flow  of 
water  through  the  break,  and  its  thereby  falling  too  low  for  the 
working  of  the  mill.^  So,  in  the  damages  arising  from  breaking 
a  lumber  raft,  may  be  included  the  fall  of  price  in  the  market  to 
which  the  lumber  was  destined.^  So  in  an  action  for  breaking 
and  entering  a  close,  and  carting  gravel  thereon,  the  plaintiff, 
upon  the  question  of  damages,  may  prove  the  cost  of  removing 
the  gravel  therefrom.^*^  So,  in  an  action  by  an  employe  against 
a  railroad,  for  injuries  resulting  from  its  carelessness,  the  plaintiff 
may  prove  "  that  he  had  no  means  or  property  to  subsist  upon, 
and  that  he  was  entirely  dependent  upon  his  labor  for  his  sup- 
port." 1^  (a)     So  in  an  action  against  a  railroad,  for  permitting  the 

1  Dickinson  v.  Boyle,  17  Pick.  78.  ^  East,  &c.  v.    Hottenstine,  47    Penn. 

2  Wallace  v.  Goodall,  18  N.  H.  439.  565. 

3  Stille  V.  Jenkins,  3  Green,  302.  8  White  v.  Mosely,  8  Pick.  356 ;  ace. 
*  Damron  v.  Roach,  4  Humph.  134.  Allison  v.  Chandler,  11  Mich.  542. 

5  Gray  v.  Waterman,  40  111.  522.  9  Dubois  v.  Glaub,  52  Penn.  238. 

6  East,  &c.  V.   Hottenstine,  47   Penn.         '«  Holt  v.  Sargent,  15  Gray,  97. 
565.  11  Hunt  v.  Chicago,  26  Iowa,  363. 

(rt)  In  such  an  action,  the  defendant's  the  absence  of  bad  motive,  or  any  fact  to 
ability  to  pay  should  not  be  taken  into  entitle  the  plaintiff  to  exemplary  dara- 
consideratiou  to  increase  the  damages,  in     ages.     Hunt  v.  Chicago,  26  Iowa,  363. 


CH.    III.]  PR08PECTIVR    AND    CONTINGENT   DAMAGES.  573 

plaintilT's  mules,  in  charge  of  the  company,  to  stampede,  a  part 
of  which   the  plaintiff  by  search  recovered  ;    the  damages  may 
include     his    services    and    expenses.^      So,    in    an    action    for 
injuries  caused  by  the  negligence  of  a  railroad,  evidence  of  the 
nature   and   extent  of  the   plaintiff's   business,  and  his  loss  from 
inability  to  attend  to  it  by  reason   of  the  injury,  may  properly  be 
admitted  ;  and  it  is  not  error  to  instruct  the  jury,  that,  "  if  a  man 
has  an  ordinary  business   yielding  ordinary  receipts,  he  will  be 
entitled  to  recover  the  diminution  of  those  receipts  resulting  from 
such  injury."  ^     So,  in  an  action  against  a  gas  company  for  refus- 
ing to  supply  a  store  with  gas,  the   evidence  of  the  plaintiff  is 
admissible,  to   show  the  extent  and  nature  of  his  business,  and 
that  it  was  inconvenient  and  difficult  to  transact  it  without  gas; 
and  that  the  want  of  gas,  he  alone  being  deprived  of  it,  tended  to 
diminish   his  business  by  making  his  store  less  attractive.'^     So 
when  a  gas  company  wrongfully  shuts  off  gas,  an  element  of  the 
damages  to  which  the  owner  is  entitled,  in  case  of  a  sale  or  lease 
of  the  premises,  is   the  depreciation  of  them,  as  compared  with 
neighboring  property  which  is  supplied  with  gas  ;  also,  the  cost 
of  the  change  of  arrangement  occasioned  by  the  disuse  of  gas.* 
So,  in  trespass  for  taking  and  carrying  away  goods,  the  damages 
may  include  compensation  for  the  destruction   of  business,  and 
for  all  the  injury  actually  caused  by  the  trespass.^    So,  in  an  action 
against  a  railroad  for  personal  injury,  evidence  of  the  plaintiff's 
occupation  as  pedler,  and  the  amount  of  his  annual   sales  and 
profit  thereon,  is  competent,  as  affording  means  for  computing 
damages  for  loss  of  time  and  prevention  of  business.*^     So,  in  an 
action  by  an  architect  for  personal  injuries,  evidence  of  the  plain- 
tiff's average  annual    profits  from  his   profession  is  admissible." 
So,  in  an  action  of  the  case  by  the  owner  and  operator  of  a  cot- 
ton-mill, against  the  owner  of  a  mill  on  the  same  stream,  for  the 
unlawful   raising  of  a  dam   below,  and   causing  backwater,  and 
thereby  diminishing  the  profits  of  the  plaintiff;  evidence  of  the 
profits  lost  from  the  interruption  may  be  submitted  to  the  jury,  as 
a  basis,  if  not  as  the  measure,  of  damages.     The  court  remark  : 
"  Evidence  as  to  profits,  as  a  general  rule,  is  rejected  ;  because, 
generally,  they  are  uncertain  and  contingent ;  depending  upon 

•  North  V.  Akers,  4  Kans.  453.  6  Allred  v.  Bray,  41  Mis.  484. 

'^  Kinney  v.  Croclter,  18  Wis.  74.  •»  Hanover  v.  Coyle,  65  Penn.  396. 

3  Sliepaicl  V.  Milwaukee,  15  Wis.  318.  "^  New  Jersey  v.    Nichols,   3   Vroom, 

*  Gas  V.  Coliiday,  25  Md.  1.  166. 


574  DAMAGES.  [book   V. 

other  circumstances  than  tlie  injurious  act  of  the  defendants,  and 
not  the  natural  result  of  it.  Nevertheless,  the  general  rule  is 
subject  to  many  exceptions.  .  .  .  Whenever  a  loss  of  profits  is 
the  natural  and  necessary  result  of  the  act  charged,  —  such  as 
the  party  probabl}'  would  have  made,  not  what  by  chance  he 
might  have  made,  but  what  any  prudent  man  must  naturally  have 
made, —  evidence  has  been,  if  not  always,  most  usually  admitted 
as  to  them."  ^  So,  in  trespass  qu.  ch,  the  plaintiff  might  claim  for 
damage  to  his  crop  by  driving  away  his  negroes.^  So,  in  an  action 
for  a  personal  injury,  whereby  the  plaintifi"  has  been  for  a  year 
unable  to  attend  to  his  ordinary  business,  evidence  of  his  net 
income,  or  the  fixed  compensation  he  has  received  during  the 
year  preceding  the  injury,  is  admissible.^  So,  in  an  action  for 
damages  sustained  by  a  defect  in  the  highway,  evidence  is 
admissible  of  the  plaintiff's  business,  its  extent,  and  the  conse- 
quent loss  arising  from  his  inability  to  prosecute  it.*  So,  in  an 
action  for  injuries,  a  plaintiff  can  recover  compensation  for  the 
loss  of  physical  and  mental  capacity,  so  far  as  occasioned  solely 
by  the  negligence;  and  evidence  of  previous  occupation  and 
capacity,  and  subsequent  capacity,  is  admissible,  for  the  purpose 
of  showing  the  extent  of  such  injury.  (Though  it  is  held  that 
the  damages  must  be  limited  to  personal  injury,  and  not  be  given 
for  interference  with  business.^)  So,  in  an  action  against  a  rail- 
road for  personal  injury  caused  by  the  negligence  of  the  company, 
evidence  is  admissible  of  consequent  loss  in  business,  and  there- 
fore of  the  nature  and  extent  of  such  business,  and  the  impor- 
tance of  the  plaintiff's  personal  oversight.  But  the  opinions  of 
witnesses  as  to  the  amount  of  loss  are  not  competent.^  So,  in  a 
suit  by  the  keeper  of  a  livery  stable  for  an  injury  done  to  two 
stallions  by  the  communication  of  a  distemper  to  them  by  a  horse 
of  the  defendant,  which  the  plaintiff  had  been  induced  to  receive 
by  the  defendant's  representation  that  the  horse  had  recovered 
from  the  distemper  and  could  not  communicate  the  disease ;  the 
plaintiff  may  prove  the  profit  he  would  probably  have  otherwise 
derived  from  the  services  of  one  of  the  stallions  during  the  foal- 

1  Simmons  v.  Brown,  5  R.  I.  299  ;  per  *  Nebraska    r.     Campbell,    2    Black, 
Brayton,  J.,  ib.  302.  590. 

2  Johnson  v.  Courts,  3  Har.   &  M'H.  »  Ballou  v.  Farnum,  11  Allen,  73. 
610.  "j  Lincoln  v.  Saratoga,  &c.,  23  Wend. 

3  Grant  v.  Brooklyn,  41  Barb.  381.  425. 


CH.    III.]  PROSPECTIVE    AND    CONTINGENT    DAMAGES.  575 

ing  season,  as  an  aid  in  estimating  tlie  damages.^  So  in  an  action  by 
a  railroad  passenger,  wrongfully  expelled  for  refusing  to  pay  an 
excessive  rate  of  fare  ;  the  company  are  liable  for  the  consequences 
of  the  wrong.^  So,  in  an  action  for  fraudulently  misrepresenting 
that  a  cow  sold  to  the  plaintiff  was  free  from  infectious  disease ; 
if  the  plaintiff  has  placed  the  cow  with  five  others,  who  have 
caught  the  disease  and  died,  he  can  recover  the  value  of  all.^ 
So,  in  an  action  for  an  illegal  distress,  evidence  is  admissible  of 
the  number,  quality,  and  value  of  the  plaintiff's  stock,  which 
the  illegal  distress  caused  him  to  sell  at  a  loss,  of  his  condition 
after  the  distress,  of  the  scarcity  and  high  price  of  such  food  in 
the  neighborhood,  and  of  the  sale  by  the  j)laintifT  of  his  stock,  and 
the  prices  which  it  brought  and  the  terms  of  the  sale.*  So  in  an 
action  against  municipal  officers,  for  illegally  seizing  the  plaintiff 
as  a  soldier,  and  sending  him  to  camp,  he  may  prove,  in  aggrava- 
tion of  damages,  his  mental  suffering  caused  by  the  injury,  and 
also  his  confinement  in  the  guard  tent  when  he  was  taken  into 
camp.^  So,  to  an  action  against  an  attorney  for  negligence  in 
the  examination  of  securities,  whereby  the  plaintiff  had  suffered 
great  loss,  the  defendant  pleaded  the  Statute  of  Limitations. 
The  examination  occurred  in  1814,  but  the  defect  was  not  dis- 
covered till  1820,  up  to  which  time  the  interest  was  paid.  Upon 
the  ground,  that,  if  the  action  had  been  brought  immediately 
after  the  neglect  occurred,  the  plaintiff  might  have  recovered 
damages  for  the  probable  future  loss,  the  defence  was  sustained, 
the  statute  being  held  to  run  from  1814,  not  from  1820.'^  So 
where  a  toll-bridge  was  carried  away  by  the  defendant's  fault, 
the  rule  for  assessing  damages  is  the  value  of  the  superstructure, 
or  so  much  of  it  as  was  carried  away  and  lost,  and  the  loss  of 
tolls  during  the  time  that  was  reasonably  necessary  to  repair  or 
rebuild."  So  where  the  defendant's  horse,  driven  b>'  his  servant, 
ran  against  and  injured  the  horse  of  the  plaintilf ;  held,  the  cost 
of  cure,  the  value  of  the  services  of  the  horse  while  being  cured, 
and  his  depreciation  in  value,  constituted  the  measure  of  dam- 
ages.*^    And,   in    general,    where    the    chief   value   of  the    thing 

I  Fultz  V.  Wycoff,  25  Ind.  821.  5  Tyler  v.  Pomoroy,  8  Allen,  480. 

'^  Jellersoiiville  r.  Rogers,  2iS  liid.  1.  <>  Howell  v.  Young,  5  B.  &  C.  259  ;  ace. 

»  MuUett  V.  Mason,  Law  Hep.  1  C.   P.  Smith  c.  Fox,  12  Jur.  130. 
569.  '  Sewall's,  &c.  r.  Fisk,  3  Fost.  171. 

*  Dailey  v.  Grimes,  27  Md.  440.  »  Streett  v.  Lanniier,  34  Mis.  409. 


676  DAMAGES.  [book  V. 

injured  is  its  daily  use,  damages  are  not  confined  to  interest  on 
the  value.-' 

§  5.  It  is  the  result  of  the  rule  of  damages  above  stated,  that, 
for  an  injury  continuous  in  its  nature,  the  party  is  entitled  to 
recover  for  all  damages  done  'previously  to  the  trial?  Thus  a 
libel,  the  subject  of  the  action,  appeared  in  the  defendant's  news- 
paper in  the  form  of  an  advertisement,  on  the  4th  of  October. 
Placards  containing  copies  of  the  advertisement  were  also  exten- 
sively posted,  and  distributed  through  the  town.  The  defendant 
was  served  with  the  writ  on  the  fifth  of  October.  Held,  evidence 
of  injury  was  admissible,  to  increase  the  damages,  accruing  to  the 
plaintiff  after  action  brought.  Also,  that  the  jury  were  rightly 
instructed  to  consider  what  was  the  natural  consequence  of  the 
defendant's  act,  without  reference  to  other  publications.^  So  the 
hirer  of  a  slave  for  a  specified  time  may  recover,  from  one  who 
takes  the  slave  from  him,  the  value  of  the  slave's  services  for  the 
entire  term,  though  the  suit  is  brought  pending  the  term.'*  So, 
in  actions  of  trespass  for  injuries  continued  after  the  actions  are 
brought,  damages  may  be  recovered  up  to  the  time  of  trial.^  (a) 
So,  in  an  action  by  a  town  for  removing  paupers  into  such  town, 
and  thereby  throwing  upon  it  the  burden  of  their  support,  the 
rule  of  damages  is  the  amount  necessarily  and  in  good  faith 
expended  in  supporting  the  paupers  from  the  time  of  their  removal 
to  the  time  of  trial.^  So  the  jury  in  an  action  for  personal  injury, 
occasioned  by  the  negligence  of  a  carrier,  may  consider  loss  and 
pain,  both  past  and  future.'^  But,  in  an  action  of  trespass,  &c., 
to  recover  freedom,  the  plaintiff  was  held  not  entitled  to  damages 
after  the  institution  of  the  suit.^  And  where,  in  trover  for  a 
negro  woman,  a  jury  gave  damages  for  the  value  of  her  child, 
born  after  the  action  was  commenced,  a  new  trial  was  granted.^ 
So,  in  an  action  for  a  nuisance,  the  measure  of  damages  is  the 
injury  received  up  to  the  time  of  commencing  the  action.^*^ 

1  Williams  v.  Phelps,  16  Wis.  80.  5  Pepoon  v.  Clarke,  1  Con.  Ct.  137. 

•'!  Puckell  V.  Smith,  5  Strobh.  26  ;  Van-  6  Stratford  v.  Sanford,  9  Conn.  275. 

devoort  v.  Gould,  36  N.  Y.  639.  "^  Russ  v.  War  Eagle,  14  Iowa,  363. 

3  Harrison  v.  Pearce,  4  Hurl.  &  Nor.  ^  Tramell  v.  Adam,  2  Mis.  155. 

863.  9  Craig  v.  Todd,  2  Const.  (S.  C)  757. 

<  Moore  v.  Winter,  27  Mis.  380.  1°  Dorman  v.  Ames,  12  Minn.  451. 

(a)  The  plaintiff  in  a  second  suit,  on     mencement  of   the  former  suit.      Beck- 
account    of  a   continuing   nuisance,  can     with  v.  Grisvvold,  29  Barb.  291. 
recover  only  for  damages  since  the  com- 


CH.    III.]  PROSPECTIVE   AND   CONTINGENT   DAMAGES.  577 

§  G.  The  plaintiff  bad  pledged  a  depreciation  note  in  the  nature 
of  a  certificate  of  ])nblic  debt,  nominally  worth  $2,029.48,  for  a 
loan  of  $G00,  a  part  of  which  was  subsequently  paid.  The  pledgee, 
without  demand  of  payment  or  notice  of  sale,  sold  the  certificate 
for  $625,  which  was  then  its  highest  market  value.  Eleven  years 
after,  the  administrator  of  the  pledgor  went  to  the  house  of  the 
pledgee  to  demand  it,  but  made  no  demand,  in  consequence  of 
the  incapacity  of  the  pledgee  to  attend  to  business.  The  admin- 
istrator then  brought  his  action  to  recover  the  value  of  the 
certificate.  Held,  the  measure  of  damages  was  the  price  of  the 
certificate  at  the  time  of  the  proposed  demand.^  So,  in  an  action 
for  wrongful  conversion  of  shares  in  a  corporation,  the  plaintiff 
having  commenced  and  prosecuted  it  with  reasonable  diligence, 
but  the  case  being  protracted,  and  the  stock  having  risen  from 
$59G2  to  $8175  ;  he  was  held  entitled  to  recover  the  latter  sum 
as  damages.^ 

^  Q  a.  In  an  action  against  a  railroad  by  husband  and  wife,  for 
injuries  received  by  -the  wife,  there  was  evidence  tending  to 
show  that  the  injuries  were  likely  to  disable  her  for  life,  and  in 
consequence  another  person  was,  and  probably  would  have  to  be, 
employed  to  do  the  work  which  she  had  been  accustomed  to  do. 
Held,  the  Carlisle  tables  were  admissible  to  show  the  expectancy 
of  the  life  of  the  wife  on  the  question  of  damages.^ 

§  7.  In  a  late  case,  being  an  action  against  a  common  carrier, 
damages  were  allowed  beyond  the  time  of  trial.* 

§  8.  The  rule  above  stated,  as  to  special  or  prospective  damages, 
of  course  involves  the  consequence,  that  no  subsequent  action 
can  be  maintained  for  damages  resulting  from  the  wrongful  act 
for  which  a  former  action  was  brought,  though  subsequent  to 
the  former  action.^  Thus,  where  the  leg  of  a  slave  was  broken 
by  another,  and  damages  given  to  the  owner  for  the  deteriorated 
value  of  the  slave  in  consequence  of  this  permanent  injur}'- ; 
held,  such  damages  were  in  lieu  of  loss  of  service,  as  being  in  full 
compensation  for  the  wrong.^  So,  in  estimating  the  value  of 
land  condemned  for  the  use  of  the  Chesapeake  and  Ohio  Canal 
Company,  it  is  the  right  and  the  province  of  the  jury  to  consider 

1  Cortelyou  v.  Lansinjx,  2  Caines'  Cas.  •»  Riiss  v.  Steamboat,  &c.,  14  Iowa,  363. 

in  Er.  200.  "  See  Hicks  v.  Herring,  17  Cal.  506. 

a  Koinaine  v.  Van  Allen,  2G  N.  Y.  (12         5  See  Herriter  v.  Porter,  23  Cal.  385. 
Smitli)  30y.  *i  Johnson  v.  Perry,  2  Humph.  oO'J. 

3  McDonald  v.  Chicago,  2G  Iowa,  124. 

37 


578  DAMAGES.  [book  V. 

all  damages  which  the  owner  would  sustain,  whether  immediate, 
remote,  or  contingent ;  and  the  legal  presumption  is,  that  the 
jury  awarded  damages  to  the  extent  of  their  authority,  and  to  all 
persons  who  might  be  affected  by  their  finding.  An  action  of 
trespass  cannot  therefore  be  sustained  by  an  owner  of  land  for 
such  damage,  he  having  already  received  an  adequate  remunera- 
tion.^  So  where  one  town  recovers  judgment  against  another,  for 
damages  caused  by  the  leaving  of  a  pauper  in  the  limits  of  the 
former  town,  the  damages  being  assessed  up  to  the  time  of  trial ; 
and,  having  unsuccessfully  notified  the  defendant  to  remove  the 
pauper,  brings  another  suit  for  subsequent  damages  :  the  former 
judgment  is  a  bar  to  such  action.  The  case  is  not  like  that  of  the 
continuance  of  a  nuisance,  wliich  is  a  constantly  renewed  cause 
of  action.  In  this  case,  the  wliole  injury  was  in  contemplation  of 
law  done  by  the  original  wrong,  although  the  future  damages 
were  contingent.^ 

§  9.  There  is,  however,  a  class  of  cases  which  reasonably  qualify 
the  general  rules  above  stated.  It  is  said,  if  remote  damages 
were  allowed,  the  rules  would  become  so  numerous,  complex,  and 
uncertain,  as  to  be  impracticable.^  And  this  principle  is  more 
especially  applied  to  damage  caused  in  any  degree  by  third 
persons."^  (See  pp.  579,  586.)  In  other  cases  it  is  said,  "  the 
damage  must  be  a  natural  consequence  of  the  principal  injury."  ^ 
"  The  negligence  must  be  the  immediate  and  not  the  remote 
cause  of  damage.  The  plaintiffs  are  entitled  to  recover  the 
actual  damage  of  which  such  negligence  is  the  direct  and  efficient 
cause,  and  no  other." '^  And  in  a  late  case  in  Pennsylvania, 
relating  to  a  mine,  the  court  remark:  "These  damages  would 
depend  on  a  thousand  contingencies.  The  success  in  working 
the  mine  against  the  ever-resisting  laws  of  nature  to  efforts  to 
disembowel  the  earth.  These,  to  be  successful,  would  depend  on 
the  management  of  its  affairs.  After  this  would  come  the  contin- 
gencies of  a  market,  of  transportation,  of  the  demand  for  the 
particular  product,  the  abundance  or  scarcity  of  money,  the  crops, 
and  the  state  of  the   country."  ^     So  the  actual  damage  at  the 

1  Canal  Co.  v.  Grove,  11  Gill  &  Johns.  *  Fitzsimons  v.  Inglis,   5  Taun.   534 ; 

398.  Sedg.  on  Dam.  67. 

-  Marlborough    v.    Sisson,   81    Conn.  &  Phillips  v.  Hoyle,  4  Gray,  571. 

332.  •*  Waite  v.  Gilbert,  10  Cush.  178. 

3  Per  Marvin,  J.,  Jones  v.  N.  Y.  &c.,  29  ^  Per  Thompson,  J.,  M'Kuight  v.  Rat- 
Barb.  644.     See  Nightingale  v.  Scannell,  cliff,  44  Penn.  169. 
18  Cal.  315, 


CH.   III.]  PROSPECTIVE   AND   CONTINGENT   DAMAGES.  579 

time  and  place  of  injury,  and  not  probable  profits  at  the  port  of 
destination,  is  the  measure  of  damages,  in  cases  of  collision  as 
well  as  insurance.^  So,  in  an  action  for  injuries  done  to  growing 
crops  by  hogs,  evidence  is  inadmissible  of  what  the  crops  injured 
in  June  would  have  been  worth  in  the  fall,  if  uninjured.^  80,  in 
an  action  for  forcibly  bricking  up  the  entrance  of  a  restaurant  or 
refreshment  saloon,  kept  by  the  plaintiff,  and  thereby  breaking  up 
his  business;  he  is  entitled  at  least  to  a  full  indemnity,  and  the 
value  of  the  business  is  a  proper  subject  of  estimate  for  the  jury. 
But  not,  it  seems,  the  possible  or  probable  profits.-^  So  in  an 
action  for  injury  to  the  plaintiff,  personally,  damage  is  not  recover- 
able for  loss  of  profit  on  contracts  which  might  have  been  entered 
into  by  him.  Such  damage  is  too  remote.'^  So,  in  an  action  for 
assault  and  battery,  evidence  is  not  admissible,  in  aggravation  of 
damages,  that,  in  consequence  of  the  injury,  the  plaintiff  lost  a 
place  to  which  he  was  about  to  be  appointed,  having  withdrawn 
his  application;  though  specially  alleged  in  the  declaration.  The 
assault  is  not  the  proximate  cause  of  the  loss.  "  It  is  soniewdiat 
like  the  case  of  a  merchant  who  should  offer  to  prove  that,  in 
consequence  of  an  assault  and  battery,  he  was  unable  to  go  to  his 
store,  and  thereby  lost  the  opportunity  to  close  a  particular  bar- 
gain which  would  have  been  profitable  :  or  of  a  farmer  who 
should  offer  to  prove  that,  in  consequence  of  such  an  act,  he  was 
unable  to  gather  in  his  crop  of  grain,  and  thereby  lost  it.  One  of 
the  intervening  causes  of  the  loss  of  the  office  appears  to  have 
been  a  voluntary  act  of  the  plaintiff's  own  will,  and  there  must 
also  have  been  the  concurrent  voluntary  acts  of  other  nien."^ 
(See  pp.  578,  586.)  So  the  defendant  caused  the  plaintiff  to  be 
apprehended  upon  an  unfounded  charge,  and  to  be  detained  from 
half-past  one  until  two  o'clock.  In  support  of  a  claim  for  special 
damage  in  an  action  for  false  imprisonment,  the  plaintiff  proved, 
that  he  would  have  been  engaged  as  a  journeyman  if  he  had  pre- 
sented himself  at  the  fiictory  at  two  o'clock  on  the  day  in  question ; 
l)ut  that,  being  unwell  from  the  treatment  he  had  received,  he 
went  home  and  did  not  go  to  the  factory  until  the  next  morning, 
when  he  found  that  his  intended  employer  had  engaged  another 

1  Smith  r.  Comlry,  1  How.  28 ;  17  Pet.  •*  Priestley  v.  Maclean,  2  F.  &  F.  288. 
20.  ^  Brown  v.  Cumniings,  7  Allen,  507, 

2  Hays  V.  Crist.  4  Kans.  350.  per  Cliapraan,  J.,  ib.  50'J. 
8  Warquart  v.  La  Farge,  6  Duer,  559. 


580  DAMAGES.  [book   V. 

man.  Held,  that  this  damage  was  too  remote.^  So  but  one  action 
can  be  maintained  to  recover  damages  for  an  injury  to  the  person. 
The  party  is  not  obliged  to  wait  until  all  the  consequences  of  the 
injury  are  fully  developed ;  he  may  sue  whenever  he  thinks 
proper,  and  recover  damages  for  both  past  and  future  pain  of 
body,  as  well  as  for  past  and  future  deprivation  of  health  or  of 
any  of  his  bodily  powers.  But  nothing  prospective  should  be 
conjectural.  Thus,  in  an  action  against  a  railroad  corporation, 
to  recover  damages  for  an  injury,  it  is  not  erroneous  to  charge 
the  jury  that,  in  ascertaining  the  amount  of  damages,  it  would  be 
proper  for  them  to  consider  the  bodily  pain  and  suffering  which 
had  occurred,  or  was  likely  to  occur,  in  consequence  of  the  injury, 
but  that  they  could  not  act  on  conjecture  as  to  the  prospective 
condition  or  situation  of  the  plaintiif ;  they  could  only  regard,  in 
respect  to  the  future,  what  the  evidence  rendered  reasonably 
certain  would  necessarily  and  inevitably  result  from  the  original 
injury .2  So  in  an  action  against  a  railroad  for  an  injury,  evidence 
is  not  admissible  tliat  the  plaintiff  had  dysentery  after  the  injury, 
and  stated  the  effects  of  it,  there  being  no  evidence  that  the  disease 
was  induced  by  the  injury .^  So  in  an  action  against  a  city  for  an 
injury  sustained  by  the  overturning  of  a  carriage  by  a  hole  left  in 
the  street,  it  was  held  improper  to  admit  evidence  that  the  injured 
party  went  to  Cuba  for  the  restoration  of  her  health,  without  show- 
ing that  the  journey  was  necessary.^  So,  wiiere  imported  wool  of 
the  plaintiff,  on  which  the  duties  had  been  paid,  was  injured  by  rea- 
son of  the  negligence  of  the  defendant's  servants,  and  in  conse- 
quence it  became  necessary  to  take  it  out  of  the  original  packages, 
and  in  a  few  weeks  afterwards  an  act  of  Congress  was  passed,  under 
which,  if  the  wool  had  remained  in  the  original  packages,  the 
plaintiff  would  have  been  entitled  to  a  return  of  duties;  held,  the 
plaintiff  was  not,  on  this  ground,  entitled  to  additional  damages.^ 
So  it  is  held,  generally,  that,  in  trespass  for  an  injury  to  property, 
the  value  of  the  property  at  the  time  of  the  injury,  with  interest,  is 
the  measure  of  damages  ;  ^  that,  in  actions  of  trespass,  the  measure 
of  damages  is  the  value  of  the   property  destroyed,  unless  the 

1  Hoey  v.  Felton,  11  C.B.  (N.  S.)  142;  3  Detroit  v.  Van  Steinburg,  17  Mich. 

8  Jur.   (N.  S.)  764;   31  L.  J.  C.  P.  105.  99. 

See,  as  to  the  damages  in  case  of  imprison-  *  Chicago  v.  Allen,  43  111.  496. 

nient  of  a  slave,  Woodfolk  v.   Sweejjer,  2  ^  Stone  v.  Codman,  1.5  Pick.  297. 

Humph.  88.  *>  Brauniu  v.  Johnson,  1  App.  361.           ' 

-  Curtis  V.  Rochester,  &c.,  20  Barb. 
282. 


CH.   III.]  PROSPECTIVE   AND   CONTINGENT   DAMAGES.  581 

trespass  is  wanton  and  malicious,  which  is  a  question  entirely  for 
the  jury,  who  may  give  vindictive  damages  ;  ^  and  that,  in  actions 
of  tort  for  the  destruction  of  property,  its  value  furnishes  the 
measure  of  damages,  from  which,  if  the  jury  materially  depart, 
the  court  will  order  a  new  trial.^  Hence  where,  in  trespass  for 
taking  personal  property,  without  malice,  and  under  a  claim  of 
right,  to  which  the  controversy  solely  relates,  the  plaintill"  claims 
that  by  the  taking  of  the  property  he  has  been  broken  up  in  his 
business;  a  charge,  that  the  defendant  must  make  the  phiintiff 
good  for  all  the  actual  damage  sustained  by  him  at  the  defendant's 
hands,  resulting  directly  and  naturally  from  the  injury,  is  errone- 
ous.^ So,  in  an  action  for  injuring  a  coal-mine,  the  measure  of 
damages  is  the  actual  injury  sustained  in  delay,  loss  of  time, 
damage  to  machinery,  &c.,  and,  if  the  mine  was  irreclaimable, 
the  value  of  the  estate  and  property ;  but  merely  speculative 
profits,  supposed  to  have  been  lost,  cannot  be  included.^  So 
speculative  estimates  of  profits  of  a  commercial  undertaking  are 
not  an  element  of  damages  ;  and  a  witness  cannot  testify  as  to 
what  a  mercantile  house  ought  to  have  made  upon  a  given  capital, 
in  order  to  reach  anticipated  profits.^  So,  where  one  finding 
stray  hogs  on  his  land  shut  them  up;  held,  in  an  action  of 
trespass  for  the  injury  done  by  the  hogs,  he  could  not  recover 
the  cost  of  keeping  them.^  So,  in  trespass  for  taking  away  a  ^'oke 
of  oxen,  the  jury  ought  not,  in  estimating  the  damages  actually 
sustained  by  the  plaintiff,  to  add  to  the  value  of  the  oxen  any 
sum  for  their  services."  So,  in  an  action  for  removing  a  belt  by 
which  water-power  was  communicated  to  the  plaintiff's  machinery, 
and  placing  it  so  as  to  run  the  defendant's  machinery,  accompanied 
with  a  claim  of  right  so  to  do,  and  with  such  forcible  acts  and 
threats  as  to  lead  the  plaintiff  to  believe  that  such  interruption 
would  be  continued;  the  plaintiff  cannot  recover,  as  damages,  for 
the  expense  and  delay  of  fitting  up  another  wheel  to  drive  his 
machinery.'^  So,  in  an  action  of  trespass  for  obstructing  a  ditch 
running  through  the  plaintiff's  land,  damages  can  only  be  recov- 
ered up  to  the  commencement  of  the  suit.^     So,  in  an  action  for 

1  AVylie  V.   Rmitbernian.  8  Ired.   2.% ;  5  McWliirtcr  r.  Dou<ilas,  1  Cold.  591. 

Bradley  v.  Oeisolman.  '22  111.  491;  Alston  <>  North  v.  McDonald.  47  Barl..  r^29.. 

V.  IIiiL^irins,  Const.  Kcp.  •IHC).  ^  Anthony  v.  Gilbert,  4  Blackf.  348. 

•i   P.ailey  r.  Jeflords,  2  S\^Q■^T.  271.  3  Sibley  v.  Hoar.  4  Grav.  222. 

8  Oviatt  r.  Pond,  29  Conn.  47'.t.  »  Shaw  v.  Etheridge,  3  Jones,  300. 

*  Mclvnight  v.  Ratcliti;  44  Penn.  150. 


582  DAMAGES.  [book   V. 

breaking  and  entering  the  plaintiff's  close,  and  tearing  down  his 
unfinished  building,  he  cannot  show,  for  the  purpose  of  proving 
damages,  what  the  building  would  have  cost,  or  rented  for,  if  it 
had  been  finished  according  to  the  plan.^  So,  where  a  municipal 
corporation  so  negligently  constructs  a  wall  that  it  falls  down 
and  injures  a  mill,  it  is  liable  to  the  owner  only  for  the  actual 
injury  with  interest ;  or,  if  rent  is  recoverable,  it  would  only  be  for 
such  time  as  was  necessary  to  repair.^  So  in  an  action  for  the 
loss  of  a  horse,  caused  by  the  defendant's  negligence,  the  plaintiff 
cannot  recover  for  the  loss  of  the  use  of  the  horse.^  So,  in  an 
action  against  a  railroad  company  for  injury  to  a  mill,  caused  by 
the  construction  of  the  road,  the  injury  to  the  unused  and  surplus 
water-power  of  the  plaintifi",  and  its  actual  market  value  for  any 
useful  purpose,  constitute  the  measure  of  damages,  the  mill  remain- 
ing as  it  was  when  the  mill  was  made.  But  evidence  is  not 
admissible  of  the  power  which  might  be  gained  by  erecting  a  new 
dam  further  down  the  stream,  making  a  shorter  race,  and  other 
alterations.  Such  damage  is  merely  theoretical  and  speculative.^ 
So  loss  by  delay,  resulting,  in  consequence  of  intervening  badness 
of  the  roads,  from  the  taking  in  execution  of  an  emigrant's  horses 
and  wagon,  is  not  such  a  natural,  proximate  consequence  of  the 
act  as  will  constitute  legal  damage.^  So  in  an  action  against  an 
officer  for  taking  a  vessel  of  the  plaintiff  under  a  writ  of  attach- 
ment against  a  third  person,  there  being  some  evidence  that  she 
was  preparing  for  a  voyage,  but  no  proof  of  malice,  the  jury  were 
directed  to  estimate  her  value  at  the  time  of  taking,  and  "  the 
additional  damage  sustained,  if  any."  Held,  the  jury  were  not 
authorized  to  allow  damages  for  the  breaking  up  of  the  voyage.^ 
So  where  the  navigation  of  a  river  is  unlawfully  obstructed  by  a 
gas-pipe,  upon  which  a  vessel,  navigated  with  due  care,  in  passing 
is  caught,  subjecting  the  charterer  to  expense  in  getting  her  off; 
in  an  action  against  the  gas  company,  he  may  recover  such  expense, 
but  not  for  delay  in  his  business,  or  other  consequential  damage.'' 
So,  in  an  action  against  a  railroad  for  an  oblique  fracture  of  the 
plaintiff's  leg,  caused  by  a  collision,  it  appeared  that  the  nature 
of  the  injury  made  probable  another  fracture.  But  the  court 
remarked :  "  The  present  and  probable  future  condition  of  the 

1  Bennett  v.  Clemence,  6  Allen,  10.  5  Vedder  v.  Hildreth,  2  Wis.  427. 

2  Ludlow  V.  Yonkers,  43  Barb.  493.  6  Boyd  v.  Brown,  17  Pick.  543. 

3  Edwards  v.  Beebe,  48  Barb.  106.  7  Benson  v.  Maiden,  &c.,  6  Allen,  149. 
*  Dorian  r.  East,  &c.,  46  Penn.  521. 


CH.    Ill,]  PROSPECTIVE   AND   CONTINGENT   DAMAGES.  583 

limb  were  proper  matters  for  inquiry  ;  but  the  consequences  of  a 
hj'-potlietical  second  fracture  were  obviously  beyond  the  range  of 
it,  and  calculated  to  draw  the  minds  of  the  jury  into  fanciful  con- 
jectures ;  "  and  decided  accordingly.^  (a) 

§  10.  It  is  said,  the  rule  of  damages  for  personal  injuries,  in- 
flicted by  negligence,  is  loss  of  time  during  the  cure,  and  expense 
incurred  in  respect  of  it,  the  pain  and  suffering  undergone  by 
the  plaintiff,  and  any  permanent  injury,  es[)ccially  when  it  causes 
a  disability  for  future  exertion,  and  conseijuent  pecuniary  loss.^ 
But  where,  by  reason  of  tlie  negligence  of  the  lessors,  an  opera- 
house  was  not  completed  in  season,  whereby  one  of  the  singers 
took  cold,  and  the  lessee  lost  the  anticipated  receipts  of  the  per- 
formance ;  held,  the  sickness  of  the  performer  was  too  remote  to 
be  the  subject  of  damages.^  So,  in  an  action  against  a  railroad 
corporation  for  injuries  to  a  horse  from  a  defect  in  the  highway 
caused  by  the  defendants,  a  proper  measure  of  damages  is  the 
diminution  in  the  market  value  of  the  horse  at  the  commence- 
ment of  the  suit,  reasonable  expenditures  for  the  purpose  of 
curing  him,  and  a  reasonable  compensation  to  the  plaintiff  for 
attempting  to  cure  him,  and  for  the  loss  of  use  of  the  horse 
while  under  such  treatment;  not  exceeding,  however,  the  value 
of  the  horse.'^ 

§  11.  In  an  action  of  trespass  against  the  New  York  collector 
of  customs,  it  appeared  that  the  plaintiff's  vessel  was  illegally 
seized,  and  detained  nearly  eleven  months,  when  she  was  re- 
stored. Six  months  before  the  seizure,  the  plaintiff  bought  the 
vessel  for  $12,474 ;  and,  the  day  before,  contracted  to  sell  her 
for  $9500.  Eight  days  after  the  restoration,  the  vessel  was  sold 
at  auction  for  $4288.  Held,  the  measure  of  damages  was 
$9500,  with  interest  and  marshal's  fees,  deducting  the  sum  of 
$4288.5 

1  Lincoln  v.  Saratoga,  &c.,  23  "Wend.  ■♦  Gillett    v.    Western,   &c.,    8    Allen, 

425.  560. 

=2  Peoria,  &c.  v.  Loomis,  20  111.  235.  ^  Woodliam  v.  Gelston,  1  Jolins.  134. 

3  Academy,   &c.   v.   Ilackett,   2   Ililt. 
217. 

(a)  Under  an  uiidcrtakintr  to  pay  (lam-  certain  work  was  obtained;  Iield,  tlie 
ages  sustained  l»y  an  injunction,  tlie  costs  ditterencc,  between  the  cost  ot'  construct- 
of  unsuccessful  "motions  and  otlier  pro-  ing  tlie  work  when  the  injimction  was 
ceedings  to  remove  the  injunction  cannot  laid  and  wlien  it  was  dissolved,  was  spec- 
be  recovered.  Childs  v.  Lyons,  3  Kob.  ulative  and  conseciuentiiii.  and  not  ])roper 
(N.  Y.)  704.  to  l)e  considered  by  the  jury.     Morgan  v. 

Where  an    injunction    against  doing  Kegley,  53  Penn.  153. 


584  DAMAGES.  [book  V. 

§  12.  In  an  action  against  a  railroad  for  non-delivery  of  goods 
in  reasonable  time,  the  measure  of  damages  is  not  the  decline  of 
price  at  tlie  time  of  delivery. ^  The  court  remark,  upon  the  gen- 
eral subject,  in  connection  with  a  full  examination  of  the  cases  : 
"  The  bailor  may,  in  such  a  case  undoubtedly  recover  an  indem- 
nity for  any  legitimate  damages  .  .  .  the  natural  and  proximate 
consequence  of  the  breach  of  the  contract  or  duty  .  .  .  damages 
that  naturally  result  from  the  breach,  and  which  are  not  too 
remote,  speculative,  or  contingent.  This  may  include  interest 
upon  the  value  of  the  property  during  the  time  the  owner  was 
deprived  of  it ;  or,  if  it  should  be  property  he  could  use,  the 
value  of  the  use  of  it.  Many  special  circumstances  may  exist 
entitling  him  to  damages,  within  the  principles  referred  to."^ 

§  12  a.  The  measure  of  damages  is  held  to  be  the  highest 
value  of  the  property  at  any  time  between  conversion  and  the 
day  of  trial.^  But  if,  in  case  of  non-delivery,  the  article  advances 
in  price,  but  goes  back  to  its  former  value,  the  advance  cannot 
be  recovered,  Avithout  showing  that  the  plaintiff  could  have  sold 
for  the  increased  price.^ 

§  13.  In  trover  by  a  mortgagee  against  a  purchaser  from  the 
mortgagor,  who  has  himself  sold  the  property  ;  the  measure  of 
damages  is  the  value  of  the  property,  with  interest  from  the 
latter  sale,  not  the  former.^ 

§  14.  The  plaintiffs  made  a  conditional  sale  of  brown  cottons 
to  a  printing  company,  who,  after  printing  them,  transferred  them 
to  the  defendant,  without  having  complied  with  the  conditions. 
In  trover,  held,  the  measure  of  damages  was  the  value  of  the 
goods  before  being  printed.^ 

§  14  a.  In  trover  against  a  person,  who,  under  orders  from  the 
United  States  military  authorities  to  take  tlie  horses  of  a  stranger, 
took  those  of  the  plaintiff,  and  passed  them  over  as  his  own  to 
the  government,  and  was  credited  with  them  ;  the  measure  of 
damages  is  the  value  of  the  horses  according  to  the  standard 
price  of  the  government,  with  interest  from  the  time  they  were 
passed  to  the  government  until  verdict.'' 

§  15.  It  is  held,  that  an  injured  party  cannot  recover  for  damages, 
which  at  a  trifling  expense   or  by  reasonable  exertion  he  might 

1  Jones  V.  N.  Y.,  &c.,  29  Barb.  633.  5  Barry  v.  Bennett,  7  Met.  354. 

2  Per  Marvin,  J.,  29  Barb.  643.  6  Dresser,  &c.  v.  Waterston,  3  Met.  9. 

3  Wilson  V.  Mathews,  24  Barb.  295.  ■?  Thomas  v.  Sternheiuier,  29  Md.  268, 

4  WUlianis  v.  Phelps,  16  Wis.  80. 


CH.    III.]  PROSPECTIVE    AND    CONTINGENT    DAMAGES.  585 

have  prevented ;  ^  especially  if  remote,  speculative,  and  contingent.^ 
It  is  incumbent  upon  any  person  subjected  to  an  injury  to  use 
such  means  as  are  reasonably  in  his  power  to  make  the  evil  conse- 
quences as  light  as  possible.    And  where  an  injured  party,  by  rea- 
sonable efforts,  succeeds  in  reducing  liis  actual  damages,  his  claim 
for  redress  must  be  reduced  accordingly.'^     Thus  where  a  trespass 
consisted  in  removing  a  few  rods  of  fence,  the  measure  of  damages 
is  the  cost  of  repairing  it,  and  not  an  injury  arising  to  the  subse- 
quent year's  crop  from  the  defect  in  the  fence.^     So,  in  Pennsyl- 
vania, in  an  issue  under  the  Act  of  19th  February,  1849,  to  assess  the 
damages  done  to  a  water-power  by  the  construction  of  a  railroad  ; 
it  is  error  to  reject  evidence,  that  the  cause  of  mischief  complained 
of  could  be  removed  for  $140,  a  verdict  being  returned  for  $3472. 
"  It  was  much  more  certain  proof  in  its  nature,  than  those  specula- 
tive views  on  which  damages  in  such  cases  are  too  often  assessed.''  ° 
So,  in  trover  for  a  bond,  the  condition  of  which  was,  that,  if  the 
plaintiff  would  remove  to  the  town  of  P.,  and  dwell  there  a  year,  he 
should  have  certain  lands;  he  not  having  removed,  the  measure 
of  damages  is  the  value  of  the  lands,  deducting  what  it  would  have 
cost  to  perform  his  part  of  the  condition.*'     So  the  measure  of 
damages  in  an  action  for  injuries  arising  to  house,  grounds,  <fcc., 
by  water  diverted  from  its  course,  upon  the  plaintiff's  land,  by  the 
defendants  in  constructing  a  railroad,  is  the  difference  between 
the  value  of  the  premises  before  the  injury  and  the  value  imme- 
diately after,  resulting  from  the  defendants'  acts,  and  which  could 
not  be  prevented  by  reasonable  care  and  diligence  on  the  part  of 
the  plaintiff."     So,  where  animals  fit  for  beef  are  not  killed,  nor  so 
injured  but  that  they  are  of  value  for  food,  it  is  the  duty  of  the 
owner  to  dispose  of  them  to  the  best  advantage  ;  he  has  no  right 
to  abandon  them  wantonly,  and  then  claim  their  full  value.     The 
criterion  of  damages  in  such  a  case  is  the  value  of  the  cattle  as 
injured,  and  their  value  before  the   injury.^     So  if  B  unneces- 
sarily throws  cotton,  left  on  his  land,  without  his  consent,  by  A, 
into  the  water,  and  A  gets  it  again  ;  A's  measure  of  damage  is 
only  the  injury  to  the  cotton  by  B's  act,  and  the  cost  of  getting  it 
back,  which  he  is  bound  to  prove.     And  A  can  recover  nothing 

1  Doiifjlass  r.  Stcplicns.  18  Mis.  SG2.  6  Rogers  v.  Crombie,  4  Greenl.  274. 

2  Lokor  r.  Diinioii,  17  Pick.  288.  "^  Chase  v.  New   York,  &c.,  24  Barb. 

3  Cliandlcr  r.  Allison,  10  Midi.  4G0.  273. 

*  17  Pick.  284.  8  Illinois,  &c.  i-.  Finiiiuaii,  21  III.  646. 

5  Parclay.  &c.  v.  Ingham,  36  Penn.  194 ; 
per  Woodward,  J.,  ib.  lU'J. 


586  DAMAGES.  [book   V. 

or  only  nominal  damages  against  B,  if  it  belonged  to  C,  and  C 
afterwards  got  possession  without  any  expense  or  trouble  to  A.^ 
So  damages   cannot  be   recovered   for  detention  of  a  steamboat, 
seized  for  a  small  debt,  but  which  could  have  been  released  on 
bond.^     So,  upon  a  somewhat  analogous   principle,  in   an  action 
of  tort  for  the  conversion,  by  the  assignee  of  an  insolvent  debtor, 
of  property  claimed  by  the  plaintiff  under  a  conveyance  from  the 
debtor ;  if  the  jury  find  the   conveyance  void  as  a  preference, 
the   plaintiff  cannot  recover  cash  patd  by  him  to  the  debtor  for 
the   difference  in  value  between   such    property  and    the    debt 
which  the  conveyance  was  made  to  secure.^     And  special  dam- 
ages cannot  be   recovered,  where  the  wrong  complained  of  was 
produced  by  the  improper  act  of  a  third  person,  remotely  induced 
by  the  wrong.*     (See  pp.  578-9.)     So,  although  it  is  no  defence 
to  an   action  for  corrupting  the  water  of  a  well,  that  the  injury 
has  been  partly  produced  by  other  causes  than  the  one  complained 
of;  this  may  be   shown  in  mitigation  of  damages.^     But  in  case 
for  unfastening  a  vessel  from  a  dock,  by  means  of  which  it  floated 
off  and  was  injured,  the  damages  will  not  be  mitigated,  by  proof 
that  the  plaintiff  had  subsequently  neglected  to  take  such  meas- 
ures as  were  in  his  power  to  recover  and  secure  it.'^     So,  in  an 
action  for  the  falling  in  of  land,  consequent  on  the  excavation  of 
the  adjoining  land  by  the  defendant,  the  measure  of  damages  is, 
not  what  it  would  cost  to  restore  the  lot  to  its  former  situation, 
or  to  build  a  wall  to  support  it ;  but  what  is  the  lot  diminished 
in  value,  by  reason  of  the  acts  of  the   defendant.'^     And,  in  an 
action  for  depositing  earth  on  the  plaintiff's  land  ;  if  removal  of 
the  earth  would  cost  more  than  the  value  of  the  land,  the  meas- 
ure of  damages  is  the  value  of  the  land.^     So  where  a  plaintiff 
recovers  damages  for  the  obstruction   caused  by  the  stone  and 
earth  of  a  bridge,  falling,  and  damming  up  a  canal  which  turned 
his  mill  ;  he  may  also  include  the  loss  occasioned  by  the  shut- 
ting off  of  the  water  by  a  third  party  in  order  to   clear  the 
canal  .^  (a) 

1  Grier  v.  Ward,  23  Geo.  14.5.  ^  Heeney  v.  Heeney,  2  Denio,  62-5. 

-  Bitrgfs  V.  D'Aquin,  13  La.  An.  21.  "^  McGuire  v.  Grant,  1  Dutcli.  3-36. 

3  Bartlett  v.  Decreet,  4  Gray,  111.  ^  Harney  v.  Sides,  1  Neva.  539. 

4  Grain  v.  Petrie,  6  Hill,  -523.  9  Dayton  v.  Pease,  4  Oliio  (N.  S.),  80. 

5  Sherman  v.  Fall  River,  &c.,  Mass. ; 
Law  Reg.,  Oct.  63,  p.  768. 

(n)  That  an  action  lies  for  nuisance  Law  Reg,  Dec.   18G5,  p.  104;   House  of 

by  reason   of  the   vapors  from  smelting  Lords  ;   affirming  the  judgments  of   the 

works,  tiiough  in  a  manufacturing  neigli-  Queen's  Bench  and  Exchequer  Courts, 
borhood ;  see  St.  Helen's,  &c.  v.  'Tipping, 


CH.    III.]  PROSPECTIVE    AND    CONTINGENT   DAMAGES.  587 

§  16.  The  plaintiffs  delivered  to  the  defendants,  who  were  car- 
riers, ten  tons  of"  cotton,  to  be  carried  from  Liverpool  to  Oldham. 
In  the  usual  course  the  cotton  should  have  been  received  on  tlie 
following  day,  but  it  did  not  arrive  till  four  days  afterwards.  In 
consequence  of  the  delay,  a  now  mill  of  the  plaintiffs  was  stopped 
for  want  of  cotton.  At  the  time  of  the  delivery  of  the  cotton  to 
the  defendants,  nothing  was  said  as  to  this  particular  inconven- 
ience likely  to  result  from  the  delay.  But  on  the  previous  day, 
and  repeatedly  on  each  succeeding  day  until  it  arrived  at  Oldham, 
one  of  the  plaintiffs  called  to  inquire  about  it  ;  and  on  each  occa- 
sion told  the  manager  of  the  goods  department  at  the  Oldham 
station,  that  the  mill  was  at  a  stand  solely  on  account  of  the  non- 
delivery of  the  cotton.  In  an  action  against  the  defendants  for 
neglect,  the  plaintiffs  proved,  that,  while  the  mill  was  at  a  stand, 
they  had  paid  in  wages  11. ;  and  that  the  profit  if  the  mill  had 
been  at  work  would  have  been  7/,  10s.  The  judge  told  the  jury, 
that  when,  as  in  the  present  case,  by  the  neglect  of  a  carrier,  a 
man  had  no  material  to  carry  on  his  business,  he  had  a  right  to 
charge  as  legal  damage  such  loss  as  naturally  and  immediately 
arose  from  stopping  the  mill ;  that  the  plaintiffs  were  entitled  to 
the  money  they  had  actually  paid  as  wages.  It,  and  that  the  profit 
which  the  plaintiffs  would  have  made  was  a  fair  subject  of  calcu- 
lation ;  and  the  jury  should  therefore  give,  over  and  above  the 
sum  of  7/.,  such  amount  as  would  be  the  actual  loss  and  detriment 
the  plaintiffs  had  suffered  by  the  non-arrival  of  the  cotton  in  due 
course.  Held,  a  misdirection,  and  that  tlie  plaintiffs  •were  not 
entitled  to  the  above  sums  as  legal  damages,  inasmuch  as  it 
assumed  that  the  stoppage  of  the  mill  arose  entirely  from  the 
non-delivery  of  the  cotton,  when  in  fact  it  arose  partly  from  that, 
and  partly  from  the  plaintiffs'  having  no  cotton  to  go  on  with  ; 
though  it  seems  the  jury  might  have  properly  given  the  amount 
of  the  wages  and  loss  of  profit  as  damages,  if  they  had  found  as 
a  fact  that  the  stoppage  of  the  mill  was  a  consequence  of  the  non- 
delivery of  the  cotton,  which,  either  from  express  notice,  or  the 
course  of  business  in  the  district,  might  have  been  anticipated 
by  the  parties  at  the  time  of  making  the  contract.^ 

1  Gee  V.  L.  &  Y.,  &c.,  6  Hurl.  &  Nor.  211. 


588  DAMAGES.  [book   V. 


CHAPTER   IV. 

MEASURE   OF   DAMAGES   IN    ACTIONS    FOR   PARTICULAR   WRONGS. 

1.  General  remark.  9.  Trov^er. 

2.  Fraud  or  deceit.  22  e.  Trespass. 

3.  Takiiio;  or  detention  of  personal  prop-  26.  Statutory  remedy, 
erty;  including  trover  and  trespass. 

§  1.  As  we  have  seen,  the  measure  of  damages  is  not  for  the 
most  part  materially  affected  by  the  nature  of  the  injury  or  the 
form  of  the  action.  There  are,  however,  some  pecuharities, 
depending  on  one  or  both  of  these  circumstances,  which  require 
to  be  particularly  mentioned. 

§  2.  In  an  action  for  deceit,  the  defendant  may  claim  a  deduc- 
tion from  the  damages  on  account  of  the  value  of  the  article  sold, 
or  of  its  use,  if  kept  by  the  purchaser.^  So,  in  an  action  for 
false  affirmations  in  the  sale  of  a  horse,  no  damages  can  be  recov- 
ered for  the  keep  of  the  horse,  previous  to  an  offer  by  the  plain- 
tiff to  return  him.^  So  where  the  plaintiff  employed  the  defendant 
to  manufacture  jewelry  from  gold  which  the  plaintiff  furnished, 
and  the  defendant  fraudulently  made  and  delivered  plated  arti- 
cles ;  in  an  action  for  such  fraud,  the  plaintiff  having  failed  to 
return  the  base  jewelry,  its  value  must  be  deducted  from  his  judg- 
ment.^ So  the  damages,  for  selling  as  a  slave  a  man  who  was 
free  were  found  by  estimating  the  yearly  services,  during  the  time 
he  was  held  by  the  plaintiff,  and  deducting  his  clothing  and  other 
necessary  expenses.* 

§  3.  In  a  leading  case  in  New  York,  the  general  question,  what 
is  the  proper  measure  of  damages,  "  the  rule  for  ascertaining  the 
sum  which  the  injured  party  ought  to  recover,  in  all  cases  where 
fersonal  pro^jert?/  is  lorongfuUy  taken  or  detained^  whether  by 
force,  by  fraud,  or  by  process  of  law,"  is   examined  and  consid- 

i  M'Laren  v.  Lon^.  2-5  Geo.  708.     See  »  Harris  v.  Bernard,  4  E.  D.   Smith, 

Warren  v.  Cole,  15  Mich.  205.  195. 

-  West  V.  Anderson,  4  Conn.  107.  *  Jones  v.  Conway,  4  Yea.  109. 


CH.    IV.]       DAMAGES   IN   ACTIONS    FOR   PARTICULAR    WRONGS.  5^d 

ered  on  principle  and  the  adjudged  cases.  It  is  there  held,  that 
the  amount  to  be  recovered  will  be  ascertained  by  adding  to  the 
value  of  the  property,  when  the  right  of  action  accrued,  such 
damages  as  shall  cover  every  additional  loss  which  the  owner  has 
sustained,  and  also  every  increase  of  value  which  the  wrong-doer 
has  obtained,  or  has  it  in  his  power  to  obtain.  The  highest  price 
which  the  property  has  borne,  at  any  time  between  its  conversion 
and  the  trial,  cannot  in  all  cases  be  the  measure  of  damages, 
since,  when  it  does  not  appear  that  this  price  would  have  been 
obtained  by  the  owner,  or  has  been  obtained  by  the  wrong-doer, 
the  damages,  measured  by  this  rule,  would  be  vindictive,  instead 
of  remunerative.  With  still  less  reason  can  the  value  of  the 
property  at  the  time  of  the  trial  be  assumed  as  the  true  and  sole 
measure  of  the  damages,  since  this  would  cast  the  risk  of  depre- 
ciation, deterioration,  or  destruction  of  property  upon  the  inno- 
cent owner.  The  principles  above  laid  down,  although  not 
explicitly  stated,  are  said  to  be  not  only  consistent  with,  but 
deducible  from,  the  adjudged  cases  in  England  and  the  United 
States,  with  the  exception  of  a  few  which  must  be  regarded  as 
anomalous.^ 

§  3  a.  In  a  later  case,  in  the  same  State,  it  is  held  no  bar  to 
an  action  of  trover  or  trespass,  that  the  plaintiff  has  recovered 
his  property.  In  this  case,  the  sum  paid  to  recover  the  property 
is  the  measure  of  damage.^ 

§  4.  Some  cases  have  occurred,  involving  the  measure  of  dam- 
ages for  the  taking  of  property  connected  loith  the  realty,  whether 
in  trespass  or  trover. 

§  4  a.  In  trespass,  for  wrongfully  entering  upon  lands,  and 
taking  and  carrying  away  the  soil,  etc.,  the  proper  measure  of 
damages  is  not  the  actual  damage  sustained,  but  the  value  of  the 
land  removed.*^ 

§  5.  In  an  action  for  injury  to  a  coal-mine,  the  measure  of  dam- 
ages is  the  actual  loss  by  delay,  loss  of  time,  damage  to  machinery, 
&c. ;  and,  if  the  mine  was  irreclaimable,  the  value  of  the  estate 
and  property  ;  but  not  merely  speculative  profits.  An  instruction 
is  erroneous,  that,  "  if  the  mine  was   rendered  entirely  useless, 

1  Snydam   r.   .Tenkins,  3   Sandf.  614.  2  Pord    v.    Williams,   24    N.    Y.    (10 

See   West   ;•.    Weiitwnrth.    3   Co\v.   82;  Smith)  359.     See  p.  6'Jl. 

Clark   (;.   I'imicy,  7   il).  081;   Carpenter  '^  Muelleri^.  St.  Louis,  &c.,  31  Mis.  2G1. 
V.  Stevens,  12  Wend.  589. 


590  DAMAGES.  [bCOK  V. 

then  the  profits  that  have  been  made  out  of  the  coal  would  be  a 
fair  basis  "  of  damages.^ 

§  6.  In  trover  for  coal  mined  upon  and  carried  away  from  the 
plaintiff's  land  by  mistake ;  the  measure  of  damages  is  the  fair 
value  of  the  coal  in  place,  and  the  injury  to  the  land  cansed  by 
the  mining.2 

§  7.  The  measure  of  damages  for  taking  petroleum  oil  is  its 
vahie  at  the  instant  of  separation  from  the  freehold.^ 

§  8.  In  an  action  for  the  destruction  of  all  the  fruit-trees  in  an 
orchard,  through  negligence  of  the  defendant;  the  measure  of 
damages  is  the  value  of  the  trees,  though  having  no  market  value 
independent  of  the  land,  as  they  stood  upon  the  land,  Avhen 
burned  ;  not  the  diminished  value  of  the  land.  The  value  may 
be  determined  by  the  opinion  of  witnesses.^ 

§  9.  The  measure  of  damages  in  trover  is  in  general  the  value 
of  the  goods  at  the  time  and  place  of  conversion,  w^ith  interest; 
subject,  however,  to  many  miscellaneous  qualifications,  which  we 
proceed  to  notice.^  (a) 

§  9  a.  In  an  action  for  the  conversion  of  goods  of  which  the 
plaintiff  has  the  immediate  right  of  possession,  the  measure  of 
damages  is  the  full  value  of  the  goods  at  the  time  of  the  con- 
version.^ In  an  action  by  a  mortgagee,  who  has  never  been  in 
possession ;  the  amount  due  on  the  mortgage." 

§  10.  Where  the  owner  of  a  chattel,  who  has  transferred  pos- 

1  McKnight  v.  Ratcliff,  44  Penn.  156.  v.  Kraft,  9  Cal.  562 ;  1  Head,  626  ;  26  Conn, 

a  Forsyth  v.  Wells,  41  ib.  291.  389,  483 ;  13  Gray,  313  ;  Greenfield,  «S;c. 

3  Kier  v.  Peterson,  ib.  357.  v.  Leavitt,  17  Pick.   1 ;    Stirling  v.  Garri- 

*  Whitbeck  V.  N.  y.,  &c.,  36  Barb.  644.  tee,  18  Md.  468  ;  Stevens  v.  Low,  2   Hill, 

5  Ilipley  V.   Davis,   15  Mich.  75;    33  133;  Clement  i-.  Brown,  30  111.  43  ;  Yater 

Cal.   117;     Moore    v.   Aldrich,  25    Tex.  y.  Mullen,  24  Ind.  277 ;  Robinson  r.  Bar- 

(Supp. )  276;  Carlj'on  v.  Lannan,  4  Nev.  rows,  48  Maine,  86. 

156;  Greer  ;;.  Powell,  1  Bush,  489;  Falk  «  Edmondson    v.    Nuttall,    17    C.    B. 

V.  Fletcher,  18  C.  B.   (N.  S.)   403;  Ken-  (N.  S.)  280. 

nedy  v.  Strong,  14  Johns.  128;  Douglass  "^  Roberts  v.  Kain,  6  Rob.  (N.  Y.)  354. 

(a)  The  rule  of  damages  in  trover  does  the   wife  in   a  wrongful  taking  of   part 

not  apply  in  Texas.     Pridgin  v.  Strick-  of  tlie    husband's    property ;    held,    the 

land,  8  Tex.  427.  measure  of  damages  was  the  value  of  the 

It  is  said,  by  a  writer  of  authority  :  "  If  property  unlawfully  taken  and  converted 

he  elects  to  sue  in  trover,  he  can  ordina-  by  the  defendant,   witli  interest  to    the 

rily  recover  no  more  than  the  value  of  time  of  trial.     Crumb  v.  Oaks,  38  Vt.  566. 

the  property,  with  interest ;  whereas,  if  In  trover,  the  measure  of  actual  damage 

lie  should  bring  trespass,  he  may  recover  is  the  value  of  the  property,  or  the  extent 

not  only  the  value  of  the  goods,  but  the  of  injury.     Damage  outside  of  this  ordi- 

additional    damnges    occasioned    hy  the  narily  can  only  be  recovered  by  special 

unlawful    taking."      2  Greenl.   Ev.    218,  action  on  the  case,  or  by  special  aver- 

§  265.     Where  the  plaintiff  and  his   wife  ments  in  the  declaration.     Park    v.   Mc- 

had  separated,  and  the  defendant  assisted  Daniels,  37  Vt.  594. 


CH.   IV.]      DAMAGES  IN   ACTIONS   FOR  PARTICULAR  WRONGS.  591 

session  to  another  person,  with  the  agreement  tliat  it  sliould 
become  his  property  on  payment  of  a  certain  sum  in  muntlily 
instalments,  brings  an  action  against  a  third  person  for  a  conver- 
sion of  tlie  chattel  after  payment  of  some  of  the  instalments  and 
a  failure  to  pay  the  remainder;  the  title  to  the  property  not 
haN'ing  passed  from  the  plaintiff,  and  for  the  purpose  of  his  full 
indemnity,  the  measure  of  damages  is  the  whole  value  of  the 
property,  with  interest  from  the  time  of  conversion.^ 

§  11.  In  trover  for  tallow,  evidence  being  given  tending  to 
prove  it  to  have  been  merchantable,  testimony  is  admissible,  in 
fixing  the  amount  of  damages,  to  show  what  was  the  retail  price 
of  merchantable  tallow  at  the  time  and  place  of  conversion.^ 

§  12.  The  plaintiff  may  recover  the  enhanced  value  of  the 
property  taken,  with  interest;  as  where  logs  are  taken  and  con- 
verted into  boards  and  plank.^ 

§  13.  The  jury  are  held  not  at  liberty  to  give  additional  dam- 
ages, in  consideration  of  the  plaintiff's  trouble  and  expenses 
incurred  in  the  prosecution  of  his  suit.'*  But  where  the  plaintiff 
has  lost  time  or  paid  money  in  searching  for  the  property,  a 
reasonable  allowance  may  be  made  therefor." 

§  14.  Upon  the  ground  that  the  plaintiff  is  entitled  to  no  more 
than  his  actual  damage  ;  where  the  property  is  returned  to  him, 
he  can  recover  only  for  the  detention.^ 

§  15.  In  trover  for  a  slave,  brought  by  an  administrator,  he 
might  recover  the  value  of  the  slave  and  her  descendants,  with 
damages  for  their  detention  from  demand  and  refusal.'^  But  dam- 
ages for  detention  can  only  be  computed  from  the  time  of  demand, 
and,  if  no  demand  is  proved,  only  from  the  date  of  the  wi-it.^ 

§  IG.  In  trover  for  money,  damages  may  be  allowed  as  interest.^ 

§  17.  Where  an  action  of  replevin  was  instituted,  but,  the 
holder  of  the  property  refusing  to  deliver  it  up,  the  action  was 
changed  to  trover;  held,  the  general  rule  of  damages  must  pre- 
vail.io 

§  18.  A  refusal  to  instruct  the  jury,  in  addition  to  a  statement 

1  Angier  v.  Taunton,  &c.,  1  Gray,  621.  f  Fishwick  v.  Sewell,  4  liar.  &  J  393. 

'^  Waters  v.  Lanfrdon,  IH  Venn.  TiTO.  ^  Colvit  v.  Cloud,  14  Tex.  03. 

3  Raker?'.  WhoeliT,  8  Wend.  ;j()5.  9  Commercial,  &c.   v.  Jones,  18  Tex. 

*  llurd    V.   Hubbell,    20    Conn.    389;  811. 

Cook  V.  Loomis,  ib.  483.  lO  McGavock   v.  Chamberlain,   20   111. 

&  McDonald  v.  North,  47  Barb.  530.  219. 

6  Cook  V.  Loomis,  ib.  ;  Hogan    v.  Kel- 
lura,  13  Tex.  39G.     See  p.  689. 


592  DAMAGES.  [book   V. 

of  the  general  rule  of  damages,  that  the  plaintiff  is  entitled  to 
recover  only  the  value  at  the  time  and  place  of  conversion,  is  no 
ground  of  new  trial.^ 

§  19.  Where  the  defendant  in  trover  conceals  the  article  till  a 
late  stage  of  the  trial,  but  finally  produces  it ;  it  is  not  an  errone- 
ous instruction,  that  the  plaintiff  ought  not  to  be  prejudiced  by 
an  intentional  withholding  of  the  chattel,  calculated  and  intended 
to  prevent  him  from  sliowing  its  actual  value  ;  and  that  they 
ought  to  give  the  full  value,  no  more  and  no  less.^ 

§  19  a.  In  case  of  sale  by  the  defendant,  the  measure  of  damages 
was  held  to  be  the  price,  which  did  not  exceed  the  value.^ 

§  19  Z>.  When  the  value  is  fluctuating,  the  plaintiff  may  recover 
the  highest  market  value  at  the  time  of  the  conversion,  or  at  any 
time  afterwards.*  (a) 

§  20.  For  conversion  of  plates  for  printing  labels  or  advertise- 
ments, of  great  value  to  the  plaintiff,  though  of  trifling  value  to 
others ;  the  measure  of  damages  is  the  former  value,  estimating 
the  cost  of  replacing  the  plates.^ 

§  20  a.  The  measure  of  damages,  in  an  action  for  taking  and 
conversion  of  property  under  a  void  attachment,  is  the  value  of 
the  property.^ 

§  21.  In  an  action  for  conversion,  the  amount  of  damages  is 
not  affected  by  the  defendant's  having  afterwards  attached  the 
property,  discontinued  the  action,  and  offered  to  restore  the  prop- 
erty to  the  plaintiff,  who  refused  to  receive  it." 

§  21  a.  Under  special  circumstances,  the  jury  are  held  to  have 
an  arbitrary  discretion  as  to  the  amount  of  damages.^ 

§  21  h.  In  trover  for  the  conversion  of  rafts  of  timber  at  Pitts- 
burg, sold  by  the  defendant  at  Cincinnati ;  evidence  as  to  the 
price  of  timber  at  Cincinnati  is  inadmissible.^ 

§  21  c.  In  trover,  for  logs  removed  from  the  plaintiff's  land  to 

1  Selkirk  r.  Cobb,  13  Gray,  813.  5  Stickney  v.  Allen,  10  Gray,  352. 

^  Beeclier  v.  Deiiniston,  \h.  354.  ^  Kelly  v.  Archer,  48  Barb.  68. 

3  Symes  v.  Tucker,  13  Mich.  9.  1  10  Gray,  352. 

*  Hanier  v.  Hatheway,  33  Cal.  117  ;  18  »  Joiie.s  v.  Allen,  1  Head,  626  ;  Backen- 

Com.  B.  (N.)   403;  Burt  v.  Butcher,  34     toss  v.  Stabler,  33  Penn.  251. 
N.  Y.  493;  Morgan  v.  Gregg,  46  Barb.  »  Hill  v.  Canfield,  56  Penn.  454. 

183. 

(a)  Under  §  3022  of  the  (Geo.)  Code,  the    the  trial,  but  without  interest.     Barnett  v. 
plaintiff  in  trover  can  recover  the  highest     Thompson,  37  Ga.  335. 
proved  value  between  the  conversion  and 


CH.    IV.]       DAMAGES   IN    ACTIONS   FOR   PARTICULAR   WRONGS.  593 

S.  in  an  adjoining  county,  and  there  manufactured  into  lumber, 
evidence  a8  to  the  value  of  the  logs  in  S.  is  admissible.  Although 
the  plaintiff  might  have  treated  the  removal  as  a  conversion,  he 
was  not  compelled  to  do  so.^ 

§  21  d.  In  trover,  for  conversion  of  three  rafts  of  timber,  the 
defendant  may  properly  ask  the  court  to  instruct  the  jury,  that 
"  in  no  event  can  the  plaintiff  in  this  action  of  trover  recover  more 
than  the  actual  value  of  the  three  rafts  of  timber  and  interest 
thereon,  —  the  value  to  be  fixed  by  the  market  value  of  tlie  tim- 
ber at  the  time  when,  and  the  place  where,  the  alleged  trover  and 
conversion  took  place."  ^ 

§  22.  The  plaintiff  had  wood  cut  and  piled  on  the  defendant's 
land  in  the  town  of  F.,  with  a  view  to  selling  it  to  him.  Before 
the  sale  was  completed,  the  defendant,  by  mistake,  carried  the 
wood  to  J.,  and  there  mingled  it  with  other  wood,  so  that  it  could 
not  be  identified.  The  plaintiff  demanded  it  at  J.,  and,  failing  to 
obtain  it,  brought  this  action  to  recover  the  value  of  the  wood 
at  J.  Held,  the  proper  measure  of  damages  was  the  value  at  F., 
at  the  time  of  conversion,  Avith  such  increase  as  it  may  have 
received  from  fluctuations  of  the  market,  or  other  causes,  inde- 
pendent of  the  acts  of  the  defendant.^ 

§  22  a.  The  law  presumes  damages  from  a  trespass ;  and  an 
instruction  to  the  jury,  that,  if  no  damage  was  done,  they  should 
find  for  the  defendants,  is  error.** 

§  22  h.  In  an  action  of  trespass  vi  et  armis,  or  in  that  character, 
the  jury  may  consider  as  damages  the  immediate  and  necessary 
consequences.^ 

§  23.  In  trespass  quare  clausum,  the  jury  may  give  damages 
for  the  conduct  of  the  defendant  in  entering  the  premises,  know- 
ing they  were  not  his,  and  for  his  subsequent  acts  after  such 
entry .'' 

§  24.  Where  it  appeared,  in  an  action  of  trespass  for  the 
seizure  and  detention  of  the  plaintiff's  vessel,  that  the  plaintilf, 
afterwards,  but  some  time  before  the  date  of  his  writ,  purchased 
her  under  a  decree  of  court;  it  was  held,  that  damages  might 
be  given  for  the  detention,  after  she  was  so  in  the  plaintiff's  pos- 
session, down  to  the  date  of  the  writ,  as  she  was  restored  only 

Final  i'.  Backus,  18  Midi.  218.  *  Attwood  v.  Fricott,  17  Cal.  37. 

Hill  V.  Canfiekl,  5(J  Peiin.  454.  5  Baltimore  v.  Bloclier,  '11  M.l.  277. 

Weymouth  v.  Chicago,  17  Wis.  650.  6  Kidgely  v.  Bond,  17  Md.  14. 

38 


594  DAMAGES.  [book   V. 

by  the  substitution  of  the  plaintiff's  money  for  her  value  as 
sold.^ 

§  25.  In  an  action  for  burning  a  house,  in  mitigation  of  dam- 
ages, the  defendant  may  show  it  to  be  a  house  of  ill-fame,  by  the 
actions  of  persons  visiting  the  house,  when  going  to  and  from  it, 
and  in  its  immediate  neighborhood.^ 

§  25  a.  The  measure  of  damages,  in  an  action  against  a  city 
by  owners  of  goods,  taken  by  force  from  their  store  by  a  riotous 
assemblage,  too  strong  to  be  resisted  by  the  plaintiffs  without 
the  aid  of  the  civil  authorities,  is  the  full  damage  to  the  store, 
with  the  full  value  of  the  goods  taken  by  force  against  the  will 
of  the  plaintiffs,  or  by  them  surrendered  under  apprehension  of 
force.'^ 

§  25  b.  In  trespass,  for  breaking  and  entering  a  close  and  carry- 
ing away  trees  and  bark,  the  measure  of  damages  is  the  value  of 
the  property  at  the  time  ;  and  evidence  as  to  the  price  of  bark, 
both  before  and  after,  may  be  considered.* 

§  26.  In  an  action  under  (N.  H.)  Statute  of  Dec.  31,  1828,  for 
not  taking  a  deposition  after  notice,  the  damages  are  double  the 
fees  allowed  at  the  time  when  the  cause  of  action  arises.^ 

§  27.  An  act  of  the  legislature  authorized  a  corporation  to  make 
a  canal,  and  provided  that  any  person  damaged  thereby  might 
apply  to  the  Superior  Court,  and  have  his  damages  adjudged  to 
him.  Held,  this  provision  was  not  intended  to  give  a  remedy 
from  time  to  time,  as  the  damages  might  actually  arise,  but  to 
give  a  remedy  at  once  for  all  the  damages  that  might  be  sustained 
by  having  the  lands  perpetually  incumbered.^ 

1  Denison  v.  Hyde,  6  Conn.  508.  <  Adams  v.  Blodgett,  47  N.  H.  219. 

2  Abrams  v.  Ervin,  9  Iowa,  87.  ^  Qould  v.  Kellev,  16  N.  H.  551. 

3  Mayor  v.  Poultney,  25  Md.  107.  ^  Woods  v.  N.  M.  Co.,  5  N.  H.  467. 


CH.    v.]         SPECIAL,   EXEMPLARY,    AND    VINDICTIVE    DAMAGES.  595 


CHAPTER    V. 

SPECIAL,    EXEMPLARY,    AND    VINDICTIVE   DAMAGES  ;    MALICE,    ETC. 

1.  Nature  and  definition  of  special  dam-  9.  As  affected  by  actual  or  possible  crim- 
ages.                                                                          inal  prosecution  for  tiie  same  ad 

2.  Must  be  expressly  alleged.  12.  Injutie-i  to  property,  not  indictable. 

3.  Exeir)pliiry  damages.  16.  Disallowiince  of  exemplary  damages; 
5.  As  depending  on  malice,  insult,  &C.            misconduct  of  the  plaintiff. 

§  1.  Under  a  general  allegation  of  damage,  the  party  is  entitled 
to  those  damages  only,  which  the  law  presumes  to  have  accrued 
from  the  wrong  complained  of,  and  which  will  compensate  him 
for  the  injury. 1  Damages  additional  to  the  amount  of  direct  and 
immediate  injury  are  often  termed  special.  It  is  said,  special 
damage  is  that  which  may  "  be  given  in  evidence  to  aggravate 
the  damages  in  one  action,  or  be  itself  the  substantive  cause  of 
action,  as  in  the  case  of  trespass  quare  clausum,  and  carrying 
away  plaintiff's  goods;  the  carrying  away  the  goods  may  be  a 
ground  of  special  damage,  or  be  the  cause  of  a  separate  action."  ^ 
Where  the  plaintiff  frames  his  declaration  with  reference  to  some 
special  ground  only,  he  cannot  introduce  evidence  of  any  loss  or 
damage  beyond  what  is  expressly  alleged.-^  (a) 

§  2.  The  right  to  recover  special  damages  usually  depends  upon 
the  allegations  in  the  writ.  Such  damage  must  be  sjjccially 
alleged,  solely  for  the  purpose  of  giving  tiie  defendant  notice  of 
the  plaintiff's  claim  with  regard  to  it;  while  he  is  held  to  take 
notice  of  such  damage  as  is  the  necessary  consequence  of  his  act, 
without  any  special  allegation,'*  and  without  any  statement  of  the 

1  Burrell  v.  New  York,  14  Mich.  84.  '  Graves  v.  Severens,  40  Vt.  636. 

2  Per  Shaw,  C.  J.,  Smith  v.  Sherman,  *  Gay  v.  Winter,  34  Cal.  153 ;  Bristol, 
4  Cush.  413.  &c.  V.  Gridley,  '2b  Conn.  201. 

(a)  In  a  suit  against  a  common  carrier  for  cial  damage  commences  as  if  it  were  a 

not  carrying  a   i)arty   according   to  con-  new  count,  and  it  is  manifest  that  it  was 

tract,  the  allegation  of  a  breach,  "  where-  the  purpose  of  the  pleader   to  .sot  them 

b}'  the  plaintiff  was   subjected   to  great  out  as  special  damages,  all  constituting 

inconvenience  and  injury,"  is  not  an  alle-  one  count,  such  statement  will   not   con- 

gation    of  special    damage.      Roberts   v.  trol  the  obvious  purpose  of  the  pleader. 

Graham  ;  Leg.  Intell.  Burnside  v.  Grand,  47  N.  11.  554. 
If  the  statement  of  each  item  of  spe- 


596  DAMAGES.  [book   V. 

particular  circumstances  of  aggravatiou,^  Thus,  in  a  suit  to 
recover  for  injury  done  to  a  horse  through  the  unskilfuhiess  of 
the  defendant,  the  expense  of  doctoring  and  taking  care  of  it 
cannot  be  recovered,  unless  declared  for  as  special  damage.^  So, 
in  an  action  for  falsely  and  maliciously  giving  information  that 
the  plaintiff  was  about  to  offer  for  sale  unw^holesome  meat,  the 
jury  cannot  assess  damages  for  an  injury  to  the  plaintiff's  repu- 
tation, without  an  averment  that  the  defendant  stated  that  the 
plaintiff  knew  the  meat  to  be  unwholesome.^  So  an  allegation, 
that  the  defendant  caused  by  the  erection  of  a  mill-dam  "  an 
unhealthy  pond  of  standing  water,"  does  not  authorize  evidence 
of  sickness  caused  by  the  pond.*  So,  in  an  action  for  injury  to 
real  estate,  loss  of  rents,  not  being  a  necessary  result  of  the  act 
complained  of,  must  be  specially  alleged.^  And,  upon  the  same 
ground,  special  damages  for  the  obstruction  of  a  way  must  be 
specially  alleged.*^  So,  in  an  action  against  the  commissioner  of 
patents,  for  refusing  to  give  copies  of  patents,  in  his  office,  on 
demand  and  tender  of  fees,  special  damage,  if  not  alleged  in 
the  declaration,  cannot  be  proved.''  So,  in  trespass  for  killing  a 
mare,  damages,  for  taking  care  of  the  wounded  beast,  and  rearing 
two  colts  she  was  suckling,  not  the  direct  necesvsary  results  of  the 
trespass,  cannot  be  given,  unless  specially  alleged.  And  where 
evidence  to  the  above  effect  was  given,  and  the  jury  gave  much 
more  than  the  average  estimated  value  of  the  mare,  and  more 
than  the  highest  estimate  in  the  testimony ;  it  was  presumed  that 
they  gave  the  above  improper  damages.^  So  an  unmarried  woman 
cannot  recover  damages,  on  account  of  her  prospects  of  marriage 
being  lessened  by  injury  which  she  has  received,  unless  alleged 
and  proved.^  So,  in  trespass  for  a  ship,  more  especially  unless 
specially  alleged,  the  plaintiff  cannot  show  that  a  writ  of  replevin 
for  the  ship,  taken  out  by  one  A  in  his  own  name,  was  procured 
by  the  plaintiff  for  his  benefit.^'^  So,  under  a  declaration  for  loss 
of  the  benefit  and  profit  from  working  a  mill,  and  the  custom  and 
trade  thereof,  by  a  disturbance,  the  plaintiff  can  only  recover  the 
value  of  the  use  of  the  mill.  Special  damages,  as  that  he  was 
obliged  to  transport  the  grain  he  raised  to  a  distant  mill,  must  be 

1  Heirn  v.  M'Cauglian,  32  Miss.  17.  ^  Adams  v.  Barry,  10  Gray,  361. 

2  Patten  v.  Lihbey,  32  Maine,  378.  7  Boyden  v.  Biirke,  14  Hdw.  575. 

3  Hemmenway  v.  Woods,  1  Pick.  524.  8  Teagarden  v.  Hetfield,  11  Ind.  522. 
*  Morris  v.  McCarney,  9  Geo.  160.  "  Hunter  v.  Stewart,  47  Maine,  419. 
5  Parker  v.  Lowell,  11  Gray,  364.  '"  Hempstead  v.  Bird,  2  Day,  293. 


CH.    v.]         SPECIAL,    EXEMPLARY,    AND   VINDICTIVE    DAMAGES. 


597 


alleged,  to  admit  of  evidence  as  to  tliem.^  So,  in  trespass  for 
mesne  profits,  alter  ejectment  for  a  liouse  used  as  an  inn,  the  plain- 
tiff cannot  recover  the  loss  sustained  by  shutting  up  the  inn  and 
destroying  the  custom,  unless  specially  stated.^  (o) 

§  3.  As  we  have  seen,  in  the  absence  of  proof  of  aggravation, 
compensation  is  the  proper  measure  of  damages.  Thus,  in  an 
action  of  trespass,  where  the  defendant  has  suffered  a  wall  to 
remain,  after  a  recovery  by  the  plaintiff  in  a  former  action  for  the 
same  cause,  but  not  from  a  wanton  disregard  of  the  plaintiff's 
rights,  or  disregard  of  his  comfort  and  convenience,  but  for  the 
proper  purpose  of  again  trying  the  question  of  title ;  it  is  not  a 
case  for  aggravated  damages.^  It  may  affect  the  question  of 
exemplary  damages,  though  not  the  question  of  actual  damages, 
from  trespass,  that  the  trespasser  honestly  believed  that  he  was 
the  owner  of  the  property.* 
^  §  4.   It   remains   to   be    stated,    that   in   numerous    cases,  (li) 


1  JIcTavish  v.  Carroll,  13  Md.  429. 

2  Dunn  V.  Large,  3  Doug.  335. 


3  Nivin  V.  Stevens,  5  liar.  272. 

*  Hillman  v.  Baunibach,  21  Tex.  203. 


(a)  The  omission  to  lay  damages  in  a 
declaration,  though  in  an  action  sounding 
altogether  in  damages,  will  be  cured  after 
verdict  by  the  (Virginia)  Statute  of  Jeo- 
fails.    Stephens  r.  White,  2  Wash.  203. 

A  judgment  for  a  sum  greater  than  the 
ad  diiiiitiinii  is  bad.  It  seems,  if  no  specific 
ad  daiiniuin  be  alleged,  a  verdict  not  ex- 
ceeiling  the  stating  part  of  the  declara- 
tion may  stand.  Walcott  v.  Holcomb,  2'4 
111.  331. 

And,  it  is  said,  damages  may  exceed 
the  value  alleged  in  the  body  of  the  count. 
2  Greeid.  Ev.  214,  §  2(10. 

Wliere  unauthorized  damages  are 
claimed,  and  a  general  judgment  ren- 
dered ;  an  arrest  is  held  to  be  lawful. 
Stirling  v.  Garritee,  18  Md.  468. 

In  tresj)ass  to  try  title  and  for  damages, 
mesne  profits  are  recoverable ;  and,  though 
not  so  called  in  the  petition,  they  may  be 
thus  denominated  in  the  verdict.  IJien- 
court  V.  Parker,  27  Tex.  558.  A  petition, 
in  an  action  for  trespass,  brought  for 
exeini)lary  damages  for  a  forcible  inva- 
sion of  the  plaintiff's  domicile,  &c.,  ask- 
ing judgment  for  §10,000  damages  for  the 
injuries  aforesaid,  has  a  sufticient  allega- 
tion of  the  damage.  Otherwise  where 
special  damage  only  is  recoverable.  It  is 
too  late  after  verdict  to  object  that  the 
plaintitt'  has  not  alleged  any  smn  as  dam- 
ages,    iloggland  V.  ("athren,  25  Tex.  345. 

It  is  not  necessary,  under  (Mass.)  Gen. 


Sts.  c.  129,  §  2,  to  set  out  in  detail  the 
elements  of  damages  sought  to  be  recov- 
ered ;  but,  under  a  general  averment,  all 
such  damages  as  naturally  How  from  the 
cause  of  action  described  may  be  recov- 
ered.    Prentiss  v.  Barnes,  0  Allen,  410. 

In  Connecticut,  in  an  action  of  trespass, 
removed  from  a  justice  of  the  jieace  upon 
plea  of  title,  treble  damages  are  allowed, 
tliough  they  exceed  the  amount  claimed. 
Hart  V.  Brown,  2  Hoot,  301. 

In  an  action  of  tort,  after  a  verdict 
for  the  plaintifl',  the  damages  will  be  i)re- 
sumed  to  have  l)een  assesscil  according  to 
the  case  proved  ;  and,  if  iin])ro[)er  circum- 
stances were  alleged  as  ajigravation,  the 
presumption  is  that  no  (lamages  were 
given  on  such  ground.  Richards  v.  Farn- 
ham,  13  Pick.  451. 

(l>)  No  question  relating  to  damages 
has  been  so  prolific  of  discussion,  and  still 
remains  so  unsettled,  as  the  one,  whether 
in  any  case,  and  if  so  in  wh;it  cases,  ex- 
emplary damages  may  be  given.  Tliere 
are  several  reasons  for  not  entering  at 
large  ujjou  this  discussion  in  the  present 
work.  In  tlie  first  place,  it  would  be  for- 
eign from  the  brief  aiul  coni])endious  jtlan 
of  the  work,  and  would  occupy  a  space 
altogether  disproportionate  to  tlie  consid- 
eration of  other  equally  or  more  impor- 
tant topics.  Another  reason  is,  that  the 
question  still  remains  an  open  one  ;  the 
reports  abounding  with  direct  decisions 


598 


DAMAGES. 


[book  V. 


according  to  the  weight  of  authority,  exemplary  damages  may  be 
given  ;  and  the  question  is  for  the  jury,^  resting  altogetlier  in  their 
discretion,  and  dependent  on  tlie  complaint  stated  in  the  dechira- 
tion  and  the  proof  offered  to  support  it.^  More  especially  vindic- 
tive  damages  for  personal  injuries  can  be  recovered,  where  they 
are  accompanied  with  circumstances  of  aggravation.^ 

§  5.  Punitive,  vindictive,  and  exemplary  damages  are,  in  legal 
contemplation,  synonymous  terms.'*  In  a  late  case  it  is  said, 
''  Exemplary  damages  would  seem  to  mean,  in  the  ordinary  and 
proper  sense  of  the  words,  such  damages  as  would  be  a  good 
round  compensation,  and  an  adequate  recompense  for  the  injury 
sustained,  and  such  as  might  serve  for  a  wholesome  example  to 
others  in  like  cases."  ^  Malice  is  the  usual  requisite  for  exemplary 
damages  ;  ^  as  in  case  of  insult; "  (a)  disposition  to  annoy,  harass, 
or  tease  ;  ^  oppression,  outrage,  or  vindictiveness  ;  ^  wanton  or  mali- 


1  Nagle  V.  Mullison,  34  Penn.  48;  Ma- 
jor V.  Pullain,  3  Dana,  582 ;  Allison  v. 
Chandler,  11  Mich.  542;  Snively  v. 
Fahnestock,  18  Md.  391. 

'^  Nivin  V.  Stevens,  5  Har.  272. 

3  Chiles  V.  Drake,  2  Met.  (Ky.)  146. 

4  Chiles    V.  Drake,  2  Met.  (Ky.)  146. 
See  Graham  v.  Roden,  5  Tex.  141. 


and  incidental  dicta,  which,  notwithstand- 
ing the  labored  and  ingenious  efforts  of 
opposing  elementary  writers  to  explain 
them  away,  respectively  adopt  both  sides 
of  the  question ;  and  the  expression  of 
another  individual  opinion  would  add  no 
weight  to  either.  And,  finally,  witli  great 
deference  it  is  suggested,  that  the  practi- 
cal importance  of  the  subject  has  been 
very  much  overrated.  In  a  large  propor- 
tion of  cases  where  exemplary  damages 
can  even  plausibly  be  claimed,  the  plain- 
tilf  may  at  any  rate  claim  full  indemnity 
or  compensation,  and  this  will  include,  in 
the  discretion  of  the  jury,  precisely  the 
same  elements,  of  wounded  feeling  on  the 
one  side,  and  malice  on  the  other,  which 
would  enter  into  a  verdict  ostensibly  ren- 
dered for  tlie  sake  of  individual  punish- 
ment or  public  example.  The  term  vin- 
dictive is  often  used  as  synonymous  with 
exemplary  ;  and,  without  reference  to  ex- 
ample or  punishment,  a  jury  may  feel 
bound  and  authorized  to  award  an 
amount  of  damages  which  will  vindicate 
the  authority  of  the  law,  and  avenge,  with 
reference  to  the  plaintiff,  the  wrong  com- 
plained of. 

It  may  be  added,  in   this  connection, 


5  Per  Holmes,  J.,  Freidenheit  v.  Ed- 
mundson,  36  Mis.  226. 

«  Fry  V.  Bennett,  3  Bosw.  200 ;  Etch- 
berry  V.  Levielle,  2  Hilt.  40  ;  Schindel  v. 
Schindel,  12  Md.  108. 

7  Wilkins  v.  Gilmore,  2  Humph.  140; 
Anthony  v.  Gilbert,  4  Blackf  318. 

8  Etchberry  v.  Levielle,  2  Hilt.  40. 

9  Nagle  V.  Mullison,  34  Penn.  48. 

that,  as  the  terms  are  generally  used,  the 
distinction  between  special  damages, 
whether  exemplari/  or  not,  and  prospective 
or  contingent  damages,  which  we  have 
already  considered,  tiiough  perhaps  not 
always  very  precisely  observed,  would 
seem  to  be  this:  Special  damages  are 
predicated  chiefly  on  the  circumstances  of 
aggravation  attending  the  injury  com- 
plained of,  as  connected  with  the  conduct 
or  motives  of  the  defendant;  while  dam- 
ages of  the  other  class  pertain  more  par- 
ticularly to  the  effects  of  such  injury  upon 
the  plaintiff.  Damages  of  both  kinds  may 
and  often  do  co-exist ;  but  neither  neces- 
sarily involve  the  other. 

(a)  To  allow  damages  for  insult  is 
said  to  prevent  duelling.  Merest  v.  Ha- 
mey,  5  Taunt.  442. 

In  an  action  of  trespass,  where  the 
defendants,  in  the  night-time,  had  thrown 
stones  and  eggs  through  the  plaintiff's 
windows ;  and  her  family  consisted  of 
herself,  her  four  daughters,  and  young 
son  :  the  jury  may  be  instructed  to  award 
s\xv\\  exemplary  damages  as  they  deemed 
proportioned  to  the  alleged  insult,  &c.,  on 
a  consideration  of  all  the  circumstances. 
Ellsworth  V.  Potter,  41  Vt.  685. 


CH.    v.]         SPECIAL,    EXEMPLARY,    AND    VINDICTIVE    DAMAGES. 


599 


cious  motives,  or  a  reckless  disregard  of  the  rights  of  others  ; 
circumstances  of  great  hardship  and  oppression  ;  ^  or  circumstances 
of  contumely  or  indignity.  Malice  is  not  merely  the  doing  of  an 
unlawful  or  injurious  act ;  but  implies  that  the  act  was  conceived 
in  the  spirit  of  mischief,  or  of  criminal  indifference  to  civil  obliga- 
tions.2  And  it  is  held,  in  an  action  for  a  trespass,  that  the  defend- 
ant must  be  presumed  to  have  intended  the  legitimate  effects  of 
such  trespass.^  And  tlie  plaintiff  in  trespass  may  give  in  evi- 
dence, to  enhance  damages  or  for  punishment,  such  circumstances 
accompanying  the  wrong  as  may  have  occasioned  him  especial 
inconvenience  or  injury.'* 
»^  §  6.  Malice  of  the  defendant  may  be  proved  by  his  own  testi- 
mony.^ 

§  7.  It  is  sometimes  held  that  malice  can  be  shown  to  increase 
the  damages  only  in  questions  of  character.^  And  there  is  no 
doubt  of  the  rule,  that,  for  the  speaking  of  words  actionable 
per  se,  the  jury  may  give  smart-money.'  So  it  is  sometimes  laid 
down,  that  exemplary  damages  may  be  recovered  for  injuries  to 
person  or  character.^  (a)  Thus,  for  an  aggravated  and  unprovoked 
assault.^  (Jj) 


1  Dorsey  v.  Manlove,  14  Cal.  553 ; 
Kennedy  v.  Nortli,  &c.,  36  Mis.  351. 

'■^  Philadelphia,  &c.  v.  Quigley,  21  How. 
202. 

3  Allison  V.  Chandler,  11  M'ch.  542. 

*  Snively  v.  Falniestock,  18  Md.  391. 

5  Norris  v.  Morrill,  40  N.  II.  395. 


«  Stallings  v.  Corbet,  2  Speers,  613. 
See  M'Cune  v.  Norwich,  &c.,  30  Conn. 
321. 

7  Guard  v.  Risk,  11  Ind.  156. 

8  Bell  V.  Morrison,  27  Miss.  68. 

9  Foote  V.  Nichols,  28  111.  486  ;  Birchard 
V.  Booth,  4  Wis.  67. 


(c()  In  an  action  for  malicious  abuse  of 
process,  vindictive  daniaj^'es  may  bcf,nvcn, 
in  case  of  actual  malice,  or  a  formed  desijjn 
to  injure  and  oppress.  Barnett  v.  Reed,  51 
Tenn.  lUO. 

The  allowance  of  vindictive  damages, 
in  an  action  i'or  malicious  prosecution, 
though  the  rule  which  limits  them  to 
Com])cnsation  is  deemed  most  nearly 
logically  correct,  will  not  be  disturbed, 
when  a  change  will  make  no  ditTerence  in 
results.  Malone  v.  Murphy,  2  Kans. 
250. 

If  an  attachment  is  not  vexatious  as 
against  the  defendant  liimself,  the  fact, 
that  the  attaching  creditor  was  actuated 
by  malice  against  a  third  person,  is  no 
ground  for  vinchctive  (himages  in  an  ac- 
tion on  the  attachment  bond.  Wood  v. 
Barker,  37  Ala.  GO. 

(b)  Words  are  no  justification  for 
blows,  and  should  never  be  considered 
by  the  jury  in  assessing  actual  damages. 


But  they  may  be  considered  in  assessing 
e.xemphiry  damages.  When  a  battery  is 
committed  under  highly  ])r()voking  lan- 
guage, the  law  will  not  im])ly  such  malice 
as  requires  pvmishmeut  with  vindictive 
damages,  unless  the  wrong  be  carried  to 
an  excess,  and  beyond  what  a  reasonable 
man  would  do  under  such  circumstances. 
Whether  stich  damages  should  be  given 
is  a  question  tor  the  jury,  and  not  for  the 
court.     Donnelly  v.  Harris,  41  III.  I2G. 

In  a  late  case  in  Maine,  being  an  ac- 
tion of  trespass  r/  et  anin's  for  maiming 
and  disfiguring  the  plaintiti",  a  majority  of 
the  court  held,  that  the  jury  aic  author- 
ized to  give  exemjilary  or  ])unitive  dam- 
ages, if  they  find  the  deTendant  wantonly 
committed  the  injury,  'i'he  instructions 
to  the  jviry,  "  that,  in  such  case,  tliey  ■were 
authorized,  if  they  thought  ju'oper,  in  ad- 
dition to  the  actual  damages  the  plaintiff 
has  sustained,  to  give  liim  a  further  sum, 
as  exemplary  or  vindictive  damages,  both 


600 


DAMAGES. 


[book  V. 


7  §  8.  But  the  prevailing  rule  now  is,  without  restriction  to  any 
particular  classes  of  injuries,  that,  in  actions  sounding  in  tort, 
whether  to  person  or  property,  if  the  injury  was  inflicted  wilfully, 
wantonly,  or  maliciously,  the  jury  are  not  limited,  in  assessing 
damages,  to  mere  compensation,  but  may  give  exemplary  (includ- 
ing in  this  term  the  evil  example  of  the  act)  or  vindictive  dam- 
ages, in  view  of  the  degree  of  malice  or  wantonness,  and,  as  is 
sometimes  held,  may  take  into  consideration  the  plaintiff's 
expenses  in  the  prosecution  of  his  suit.^  Compensation  is  the 
measure  of  redress  for  the  legal  wrong;  but  for  the  moral  wrong, 
the  recklessness  of  the  act,  the  personal  malice  with  which  it  is  done, 
the  violence  and  outrage  attending  it,  reasonable  exemplary  dam- 


1  Baltimore  i'.  Blocher,  27  Md.  277  ; 
Walker  v.  Wilson,  8  Bosw.  686 ;  Dibble 
V.  Morris,  26  Conn.  416 ;  Tillotson  v. 
Cheatliam,  3  Jolins.  56  ;  Milburn  i-.  Beach, 
14  Mis.  104;  McWillianis  v.  Bragg,  3 
Wis.  424  ;  Wilkins  v.  Gilmore,  2  Humph. 
140;   Edwards   v.   Beach,   3   Day,   447; 

as  a  protection  to  the  plaintiff  and  as  a 
salutary  example  to  others,  to  deter  them 
from  offending  in  like  cases,"  was  held 
to  be  in  accordance  with  tlie  weight  of 
judicial  authority  in  this  country,  in  the 
courts  of  the  United  States,  and  in  those 
of  the  several  States.  On  the  other 
hand,  Mr.  Justice  Rice  remarked,  that, 
"in  actions  of  tort,  damages  are  given  as 
a  compensation  for  injuries  received,  and 
should  be  commensurate  with  those  in- 
juries ;  no  more,  no  less.  Exemplary, 
vindictive,  or  punitive  damages  are  some- 
thing beyond,  given  by  way  of  punish- 
ment. Tills  rule  of  damages  is  presented 
in  the  ruling  in  this  case  distinctly,  and 
without  any  ambiguity.  Hitherto,  it  has 
not  been  adopted  in  this  State.  Deem- 
ing it  unsound  and  pernicious  in  principle, 
I  cannot  concur  in  engrafting  it  upon  our 
law,  nor  in  adopting  it  as  a  rule  of  prac- 
tice in  our  courts."  Pike  v.  Dilling,  48 
Maine,  539. 

'J'he  amount  of  damages  in  actions  for 
assault  and  battery  is  not  fixed  by  law, 
tut  is  left  to  the  discretion  of  the  jury. 
The  jury  should  look  at  the  nature  and 
extent  of  the  injuries,  and  the  circum- 
stances under  which  they  were  inflicted, 
and  then  say  what  is  just  and  proper 
under  all  the  circumstances.  Little  v. 
Tingle,  26  Ind.  168. 

In  assessing  damnges  for  a  violation  of 
personal  liberty,  the  judge  has  discretion, 
without  calculating  altogether  on  the 
pecuniary  loss.  Block  v.  McGuire,  18  La. 
An.  417. 


Hatch  V.  Pendergast,  15  Md.  251 ;  Denni- 
son  ;;.  Hyde,  6  Conn.  508 ;  Williams  v. 
Keil,  20  III.  147 ;  Peoria,  &c.  v.  Loomis, 
20  111.  235;  Day  v.  Woodworth,  13  How. 
363,  371  ;  Treat  v.  Barber,  7  Conn.  274; 
Ously  V.  Hardin,  23  111.  403;  Wylie  v. 
Smitherman,  8  Ired.  236. 

In  a  suit  for  damages  caused  by  per- 
sonal injury,  in  the  absence  of  proof  of 
evil  motive,  exemplary  damages  cannot 
be  recovered.  Hyatt  v.  Adams,  16  Mich. 
180. 

In  an  action  for  assault  and  battery, 
the  jury  was  instructed,  that  "  damages 
are  of  three  kinds,  —  nominal,  compensa- 
tory, and  exemplary;"  that  "nominal 
damages  are  proper  when  any  right  has 
been  invaded,  and  no  evidence  is  given  of 
any  particular  amount  of  loss;"  that 
"compensatory  damages  are  given  when 
no  elements  of  oppression  or  malice  enter 
into  the  commission  of  the  offence,  and 
are  designed  merely  to  furnish  actual 
compensation  for  injury  sustained;  "  that 
"  exemplary  damages  are  given  whenever 
elements  of  oppression  or  fraud  or  malice 
enter  into  the  commission  of  the  offence  ; 
and  in  such  cases  the  jury  are  not  limited 
to  the  actual  compensation,  nor  are  they 
required  to  scrutinize  very  closely  the 
amount  of  their  verdict,  but  blending 
together  the  rights  of  the  injured  party 
and  the  interests  of  the  community,  they 
may  give  such  a  verdict  as  will  compen- 
sate for  the  injury,  and  at  the  same  time 
inflict  some  punishment  upon  the  defend- 
ant for  his  wrongful  act,  protect  society, 
and  manifest  the  detestation  in  n'hich  the  act 
is  held  bji  them."  Held,  the  final  clause 
was  erroneous.  Hendricksou  v.  Kings- 
bury, 21  Iowa,  379. 


CH,    v.]         SPECIAL,   EXEMPLARY,    AND    VINDICTIVE   DAMAC.ES.  601 

ages  will  bo  allowed. ^    In  a  very  late  case  in  Pennsylvania,  it  is  said 
"  In  wanton  and  aggravated  trespasses  more  than  mere  compen- 
sation may  be  allowed  by  way  of  punishment."  ^     So  in  another 
late  case  it  is  held,  that  exemplary  damages  may  be  recovered  in 
actions  for  injuries  caused  by  the  gross  negligence  of  the  defend- 
ant, as  well  as  in  actions   for  forcible  injuries.-'^     And  in  actions 
for  injuries  to  personal  property,  whether  trespass  or  case,  the 
jury  are  not  restricted  to  the  pecuniary  loss,  but  may  take  into 
consideration  the  circumstances  of  aggravation.     Thus,  where  it 
was  alleged  and  proved,  in  an  action  on  the  case,  that,  the  plain- 
tiff, a  clothier,  being  the  owner  of  one  moiety  of  certain  clothier's 
works,  with  the  land  and  privileges  connected  therewith,  which 
he  had  mortgaged  to  a  third  person,  and   had   paid   the   mort- 
gage debt,  leaving  the  legal  title  outstanding,  the. defendants,  pro- 
prietors of  an  adjoining  manufactory  of  cloths,  purchased  the  other 
moiety,  and  then,  with  a  view  to  break  up  the  plaintiff's  business 
and  get  rid  of  him  as  a  competitor,  bought  in  the  outstanding 
legal  title,  and,  under  color  of  that  title,  appropriated  the  whole 
of  the  water  privileges  and  clothier's  works  to  their  own  use,  and 
expelled  the  plaintiff  therefrom ;  it  was  held,  that   the  jury,  in 
estimating  the  damages,  might  consider  the  motives  and  objects 
of  the   defendants,   in   committing  the  act  complained   of.*     So 
exemplary  damages  may  be  given,  in  case  of  an  entry  in  good 
faith,  under  a  belief  of  right,  for  wilful  damage  to  goods.^     So,  in 
an  action  for  obstructing  a  public  way,  the  jury  may  allow  puni- 
tive  damages.*^     So,  in  an  action   for  wilful  trespass  in  carrying 
away  the   plaintiff's  wheat,  the  jury  may  give  "smart-money."'' 
So  exemplary  damages  may  be  recovered  in  actions  of  tresjjass 
qu.  c/aiis.,  when   there   are  such  circumstances  of  aggravation, 
insult,  or  malice,  as  would  warrant  them  in  any  other  form  of 
action.^     And  it  is  held  that  these  circumstances  are  not  indis- 
pensable.    Vindictive  damages  may  be  given,  though  the  defend- 
ant did  not  enter  maliciously,  in  a  rude,  aggravating,  or  insulting 
manner.^      Where    the    defendants    were    part    of    a    body    of 

1  Hodpson  V.  Millward,  3  Grant,  406.  «  Windliani  i-.   T^lianic,  11  Kicli.  283; 

2  Per  Tlioniiison,  J.,  McKniglit  v.  Kat-      Jcfcoat  v.  Knotts,  ib.  G4U. 

cliff,  44  Penii.  1(58.  '   Hull  v.  Griswold,  I'J  III.  C'll. 

^  Kounts  t'.  Erownz,  16  B.  Mon.  577.  **  Perkins   v.    Towle,   48    N.    II.  'J20  ; 

*  Merrill    v.    Manufacturing    Co.,    10  Greenville  v.  Partlow,  14  Hich.  L.  'J:57. 
Conn.    384;    Tiliotson    v.    Clieetham,  3  »  Devauglin  d.  Heath,!  Ala.  (6.  C.) 

Jolins.  56.  623  ;  37  Ala.  505. 

5  Best  V.  Allen,  30  111.  30. 


602  DAMAGES.  [book  V. 

armed  men,  which  forcibly  broke  and  entered  a  store,  put  the 
plaintifif  in  bodily  fear,  and  carried  away  most  of  his  goods  and 
injured  his  business  ;  tlie  value  of  the  goods  was  held  not  to  be 
the  measure  of  damages. ^  So,  in  a  suit  against  a  landlord  by  a 
tenant  for  an  unlawful  eviction,  the  jury  may  award  exemplary 
damages,  when  the  trespass  was  accompanied  by  circumstances 
of  aggravation,  and  was  gross  in  itself.^  So  where  A  advised 
and  incited  a  party  of  rebel  soldiers  to  camp  on  the  farm  of  B, 
consume  and  destroy  his  provisions,  and  carry  off  his  property  ; 
held,  A  was  liable  to  B  for  the  value  of  property  so  destroyed 
and  carried  off,  and  also  for  smart-money.^  So,  in  trespass  for 
taking  away  goods,  the  jur}',  in  estimating  the  damages,  may  con- 
sider the  circumstances  which  accompanied  and  gave  character 
to  the  wrong.*  And  the  court  will  not  disturb  a  verdict  on  the 
ground  of  excessive  damages,  in  a  case  of  trespass,  and  exposing 
a  crop  to  be  destroyed  by  cattle,  where  the  jury  gave  the  high- 
est price  for  which  the  crop  might  have  been  sold.'^  (a)  So  in 
an  action  of  tort  against  a  common  carrier,  for  a  personal  grievance, 
by  fraud,  gross  negligence,  or  oppression,  the  jury  may  in  their 
discretion  award  such  damages,  by  way  of  punishment  or  for  the 
sake  of  example,  as  they  may  think  that  the  peculiar  circum- 
stances justify.^  So  exemplary  damages  may  be  given  against 
an  overseer  of  a  highway,  who  cuts  down  a  tree  therein  without 
authority  and  maliciously.'^ 

§  9.  Another  very  important  point  of  inquiry  is,  how  far  actual 
punishment,  or  mere  liability  to  punishment,  in  a  criminal  prosecu- 
tion, is  to  affect  the  amount  of  damages  in  a  civil  action  for  the 
same  Avrongful  act.  Upon  this  point  it  has  been  held,  that,  in 
a  civil  action  for  assault  and  battery,  vindictive  or  exemplary 
damages  may  be  given,  though  the  act  may  be  punishable  in 
a  criminal  prosecution.^  So,  notwithstanding  tlie  defendant  has 
been   convicted  and  fined  in  a  criminal  prosecution  for  the  same 

1  Freidenheit  v.  Edmundson,  36  Mis  .  ^  Denby  v.  Hairson,  1  Hawks,  315 ; 
226.  Allen  r.  Craig,  1  Green,  294. 

2  Bonsall  v.  McKay,  1  Houst.  520.  ^  Heirn  v.  M'Caughan,  32  M'ss.  17. 

3  Bronson  v.  Green,  2  Duv.  234.  7  Winter  v.  Peterson,  4  Zahr.  524. 
*  Young  V.  Mertens,  27  Md.  114.  8  Wilson  v.  Middleton,  2  Cal.  54. 

(fi)  It    is    sometimes    held,    that    ex-  The  Pennsylvania    Statute  of  March 

emplary  damages  may  be  given  in  tres-  29,  1824,  §  3,  giving  treble  damages,  does 

pass,  even   if   it    is   not  shown  that  the  not   apply  to   an   innocent   purchaser  of 

defendant  was    actuated    by  ill-will    and  timber  cut  from  another's  land.     OReilly 

hostility.     Goetz  v.  Ambs,  27  Mis.  28.  v.  Shadle,  33  Penn.  489. 


CH.    v.]         SPECIAL,    EXEMPLARY,   AND    VINDICTIVE   DAMAGES.  603 

offence.^  And,  it  seems,  the  fact  that  the  defendant  has  been  pun- 
ished criminally  cannot  be  given  in  evidence  to  mitigate  dam- 
ages. And  although,  it  seems,  after  a  criminal  conviction,  the 
court  may,  with  a  view  to  the  measure  of  punishment,  suspend 
judgment  until  the  decision  of  a  civil  action  pending  for  the  same 
cause;  yet,  it  seems,  the  proceedings  in  the  civil  action  will  not 
be  stayed  for  the  purpose  of  awaiting  the  event  of  the  criminal 
prosecution.-  And,  in  assessing  damages  for  an  assault,  it  is  com- 
petent for  the  jury  to  consider  the  effect  which  the  finding  of 
trivial  damages  may  have,  to  encourage  disregard  of  the  laws 
and  disturbance  of  the  peace.^ 

§  10.  There  is,  however,  another  class  of  cases,  which  hold 
a  different  doctrine.  It  is  this.  While,  on  the  one  hand,  forcible 
injuries  are  those  in  which  the  element  of  malice  is  most  likely  to 
be  found,  and  are  therefore  peculiarly  the  subjects  of  exemplary 
damages  ;  on  the  other  hand,  being  liable  to  prosecution  as  crim- 
inal offences,  they  are  held  to  be,  for  this  reason,  exempted  in  a 
civil  action  from  any  thing  more  than  the  actual  damages.* 

§  11.  In  a  case  in  Massachusetts,  Mr.  Justice  Metcalf  remarks  : 
"  Whether  exemplary,  vindictive,  or  punitive  damages,  that  is, 
damages  beyond  a  compensation  or  satisfaction  for  the  plaintiff's 
injury,  can  ever  be  legally  awarded,  as  an  example  to  deter  others 
from  committing  a  similar  injury,  or  as  a  punishment  of  the 
defendant  for  his  malignity,  or  wanton  violation  of  social  duty,  in 
committing  the  injury  which  is  the  subject  of  the  suit,  is  a  ques- 
tion upon  which  we  are  not  now  required  nor  disposed  to  express 
an  opinion.  The  arguments  and  the  authorities  on  both  sides  of 
this  question  are  to  be  found  in  2  Greenl.  Ev.  tit.  Damages,  and 
edgwick  on  Damages,  39  et  seq.  If  such  damages  are  ever 
recoverable,  we  are  clearly  of  opinion  that  they  cannot  be  recov- 
ered in  an  action  for  an  injury  which  is  also  punishable  by 
indictment ;  as  libel,  and  assault  and  battery.  If  they  could  be, 
the  defendant  might  be  punished  twice  for  the  same  act.  See 
Thorley  v.  Lord  Kerry,  4  Taunt.  355 ;  Whitney  v.  Hitchcock,  4 
Denio,  461;    Taylor  v.   Carpenter,   2   Woodb.   &  Min.   1,   22."  ^ 

1  Corwin  v.  Walton,  18  Mis.  71  ;  Jeffer-  *  Taber  v.  Hutson,  5  Iiid.  ^'22  ;  Ornisby 

son  V.  Adams,  4  Harring.  321;  Cook  ?\  r.  Johnson,  1  B.  Monr.  80;  lIutni)lirios  v. 

Ellis,*)   11111,466;    Roberts  t;.  Mason,  10  Johnson,  20  Ind.  liJO ;  Austin  r.   Wilson, 

Ohio  (N.  S.),  277.  4  Cush.  278. 

^  Cook  V.  Ellis,  6  Hill,  466.  6  Austin  i-.  Wilson,  4  Cush.  274. 

3  Beach  v.  Hancock,  7  Fost.  223. 


604  DAMAGES.  [book   V. 

Accordingly,  in  Indiana,  one  liable  to  a  penalty  under  the  liquor 
law  of  1853  cannot  also  be  liable  for  vindictive  damages  in  a  civil 
action.!  gg  [^  jg  held,  that  the  record  of  a  judgment  upon  a  crim- 
inal complaint  for  assault  and  battery  should,  if  proved  in  a  civil 
action,  be  a  sufficient  defence  against  exemplary  damages.^  So, 
for  a  malicious  trespass,  exemplary  damages  cannot  be  given.  A 
criminal  prosecution  is  the  proper  remedy.-^  It  is  to  be  observed, 
however,  that  in  cases  of  this  description,  as  remarked  in  a  recent 
case,  the  jury  may  consider  "  every  circumstance  of  the  act  which 
injuriously  affected  the  plaintiff'';'*  and  thus,  probably,  reach  the 
same  point  of  damages,  as  if  they  were  termed  exemplary. 

§  12.  We  have  already  spoken  of  injuries  to  property  as  the 
subjects  of  exemplary  damages,  with  reference  to  this  class  of 
wrongs  as  distinguished  from  those  which  are  also  liable  to  crim- 
inal prosecution.  Further  illustrations  may  properly  be  added  in 
the  present  connection.  The  recent  cases  are  numerous,  and  can 
only  be  briefly  noticed. 

§  12  a.  In  an  action  of  ^resjoass,  where  the  wrong  is  wanton  or 
wilful,  the  jury  may  give  damages  beyond  the  actual  injur}^,  as  a 
punishment,  and  to  preserve  the  public  tranquillity.  But  not 
when  the  wrong-doer  acts  in  good  faith,  with  honest  intentions, 
and  with  prudence  and  proper  caution.^  In  an  action  of  trespass 
for  cutting  and  carrying  away  timber,  where  the  defendant  had 
wilfully,  or  through  gross  negligence,  cut  over  the  line;  it  was 
held  that  the  damages  were  not  to  be  confined  to  mere  compen- 
sation, but  the  jury  might  give  such  damages  as  would  be  also 
adequate'  in  their  judgment  for  prevention.^  So  in  a  case  of 
aggravated  trespass,  resulting  in  the  loss  of  the  plaintiff's  slave, 
the  jury  were  authorized  to  give  exemplary  damages.'''  So  vindic- 
tive damages  may  be  given  in  trespass,  for  a  wanton  violation  of 
the  plaintift''s  rights,  by  killing  hogs  that  wandered  repeatedly 
into  an  insufficiently  fenced  potato  patch.^  In  an  action  of  tres- 
pass for  personal  injuries  resulting  from  a  runaway  horse,  the 
defendant  having  placed  the  plaintiff,  a  little  girl,  in  a  buggy, 
under  perilous  circumstances,  —  the  act  being  without  malice, — 
no  vindictive  damages  can  be  given.^ 

>  Stnible  V.  Nodwift,  11  Ind.  64.  6  Kolb  v.  Bankhead,  18  Tex.  228. 

••2  Cherry  v.  McCall,  23  Geo.  193.  1  Hedgepetli  v.  Robertson,  18  ib.  858. 

3  Butler  V.  Mercer,  14  Ind.  479.  ^  Champion  v.  Vincent,  20  ib.  811. 

*  Nossaman  v.  Uickert,  18  Ind.  350.  9  Pierce  v.  Millay,  44  111.  189. 
6  Hawk  V.  Kidgway,  83  111.  473. 


CH.    v.]  SPECIAL,    EXEMPLARY,    AND    VINDICTIVE   DAMAGES.  G05 

§  13.  In  an  action  for  wilful  neglig^ence,  the  jury  may  take  into 
consideration  the  motives  of  the  defendant,  and,  if  the  negh'gence 
is  accompanied  witli  a  contempt  of  the  plaintiff's  rights  and  con- 
venience, may  give  exemplary  damages.^ 

§  13  a.  For  injuries  inflicted  by  a  ram,  permitted  to  run  at 
large,  and  alleged  to  have  been  known  by  the  defendant  to  be 
vicious  and  disposed  to  injure  mankind,  exemplary  damages  are 
allowed,  only  on  clear  proof  of  gross  and  criminal  negligence, 
evincing  a  wanton  disregard  of  the  safety  of  others,  and  in  law 
equivalent  to  malice.^ 

§  13  b.  In  an  action  against  a  railroad,  for  injuries  received  by 
a  passenger  from  negligence,  it  is  not  liable  for  smart-money, 
when  there  is  no  gross  negligence  or  wanton  recklessness.^  So 
in  an  action  against  a  street-railway  company  for  damages,  for 
an  injury  suffered  by  a  passenger,  an  instruction,  that,  "  if  the 
negligence  of  the  driver  was  gross,  the  jury  should  find  exemplary 
damages,  in  their  discretion,  beyond  the  actual  injury  sustained, 
for  the  sake  of  the  example  and  punishment  for  such  gross  negli- 
gence," was  held  erroneous.'*  So  in  an  action  against  a  railroad 
for  failure  to  deliver  a  passenger  at  her  destination,  it  is  errone- 
ous to  instruct  the  jury,  that  their  finding  should  include  punitory 
damages  for  disregard  of  public  duty.  It  should  have  been  added 
that  punitory  damages  should  only  be  given,  if  ihe  circumstances 
of  the  case  were  found  to  justify  or  require  them.  The  question 
is  for  the  jury  to  determine,  as  a  matter  of  sentiment  and  feeling, 
to  be  exercised  by  them  according  to  their  sound  discretion,  duly 
weighing  all  the  circumstances,  and  considering  the  stated  degree, 
quality,  trade,  or  profession  of  the  party  injured,  as  of  him  who 
did  the  injury.  The  jury  may  also  consider  the  sex  of  the  plain- 
tiff, the  peril  in  which  she  was  placed,  and  her  mental  and  physical 
sufferings.  An  instruction,  which  assumes  that  every  failure  to 
discharge  all  the  duties  imposed  by  the  nature  of  the  office  of 
common  carrier  amounts  to  gross  and  wilful  misconduct,  for  which 
punitive  damages  may  be  given,  is  erroneous.  The  jury  are  the 
sole  judges  of  the  existence  and  weight  of  facts  justifying  vindic- 
tive damages.  A  mere  neglect  of  duty,  unattended  with  any  cir- 
cumstances of  insult,  of  aggravation  of  feelings,  of  injury  to  the 

1  Emblen  v.  Myers,  6  Hurl.  &  Nor.  54.  »  Kentucky  r.  Dills.  4  Rtisli.  503. 

2  Pickett  V.  Crook,  20  Wis.  358.  *  McKeon  i-.  Citizens',  A2  Mis.  T'J. 


606  DAMAGES.  [book  V. 

person  or  liis  property,  or  of  bodily  or  mental  suffering,  would 
not  justify  them.^  So  in  an  action  against  a  railroad  for  live  stock 
accidentally  killed  by  its  trains,  as  by  reason  of  failure  to  fence, 
a  verdict  allowing  smart-money  will  be  set  aside.^  So,  although 
every  traveller  on  a  highway,  crossed  by  a  railroad,  is  entitled  to 
the  benefit  of  the  signal  required  by  statute,  yet,  if  the  signal  is 
not  given,  a  party  who  can  both  see  and  hear  the  train  in  time 
to  avoid  it,  and  does  not  use  the  proper  means,  or  any  means,  to 
avoid  it,  will  not  be  entitled  to  vindictive  damages  for  an  injury 
received  from  the  train.^  So  where  a  railroad  adopts  all  rules 
and  regulations  needful  for  the  safety  of  the  passengers,  and 
employs  competent  agents,  whose  duty  it  is  to  see  that  these  are 
observed  ;  the  company,  in  case  of  injury  to  the  passengers, 
happening  by  the  carelessness  of  a  subordinate  agent,  cannot  be 
held  liable  for  punitive  damages.*  So  in  an  action  by  a  pas- 
senger for  injuries  sustained  by  the  overturning  of  a  street  car, 
drawn  by  horses,  the  jury  cannot  award  exemplary  damages.^ 
So  in  an  action  by  a  passenger  against  a  railroad,  on  account  of 
injuries  resulting  from  a  collision  of  its  trains,  the  recovery  may 
include  his  pain  and  suffering,  expense  of  medical  attendance, 
and  loss  of  time  ;  but,  unless  the  injury  has  been  wanton,  the 
damages  must  be  strictly  compensatory.*^ 

§  13  c.  But  exemplary  damages  may  be  given  against  a  rail- 
road in  case  of  gross  negligence  or  wanton  misconduct  of  an 
employe."  So  in  an  action  by  a  child,  run  over  by  a  steam  car, 
at  a  city  street-crossing ;  wanton  and  malicious,  or  gross  and 
outrageous,  conduct  of  the  defendant  warrants  punitive  dam- 
ages.^ And  a  passenger,  injured  by  the  neglect  of  a  railroad  car- 
rier to  transport  him  safely,  is  entitled  to  compensation  for  the 
pain  caused  by  the  injury.^ 

§  14.  In  order  to  recover  special  damages,  for  loss  by  dis- 
ease communicated  to  another  part  of  his  flock,  from  sheep  pur- 
chased of,  and  warranted  by,  the  defendant,  the  plaintiff  need  not 
allege  nor  prove  that  the  defendant  knew  at  the  time  that  they 
were  intended  to  be  placed  with  the  other  sheep.^"^ 

§  15.  A  physician  who,  in  what  was  called  a  frolic,  put  in  the 

1  Soutliern  v.  Kenclrick,  40  Miss.  374.  «  Penn  v.  Books,  57  Penn.  339. 

2  Toledo  V.  Arnold,  43  III.  418.  ^  N.  O.  v.  AUbriton,  33  Miss.  242. 

3  Chicago  V.  McKean,  40  111.  218.  8  Baltimore  v.  Breinig,  25  Md.  378. 

*  Ackerson  v.  Erie,  3  Vroora,  254.  "  Pennsylvania  v.  Allen,  53  Penn.  276. 

5  Louisville  v.  Smith,  2  Duv.  556.  i'^  Packard  v.  Slack,  32  Verm.  9. 


CH.    v.]  SPECIAL,   EXEMPLARY,    AND   VINDICTIVE    DAMAGES.         007 

plaintiff's  glass  of  wine  a  potion  of  cantlmrides,  from  the  effects 
of  which  he  was  not  free  for  months,  was  held  liable  to  pay  very 
exemplary  damages.^ 

§  15  a.  Exemjilary  damages  are  allowable  in  an  action  for 
wilful  deceit?  In  an  action  to  recover  the  value  of  the  running 
gear  of  a  gin,  alleged  to  have  been  wrongfully,  wilfully,  and  mali- 
ciously taken  by  A,  and  converted  to  his  own  use ;  it  appeared 
that  A  went  to  the  premises  of  the  plaintiff,  and  removed  the 
gear,  representing  to  a  tenant  that  he  had  purchased  it.  There 
was  other  evidence  tending  to  show  an  incomplete  negotiation 
for  the  sale  of  the  property.  Held,  the  trespass  partook,  though 
very  slightly,  of  the  elements  of  fraud  and  oppression,  and  there- 
fore presented  a  proper  case  for  exemplary  damages.^  But  one 
who  has  purchased  property  through  fraudulent  representations 
or  concealment  of  material  facts,  cannot  recover  vindictive  dam- 
ages without  showing  some  injury.** 

§  15  b.  In  an  action  for  conversion,  it  is  proper  for  the  court  to 
submit  to  the  jury  the  question  of  malice,  so  as  to  allow  smart- 
money.^ 

§  15  c.  But  in  trover,  unless  particular  circumstances  justify  it, 
an  instruction  is  improper,  that  the  jury  may  go  further  than  the 
ordinary  rule  for  the  measure  of  damages  in  such  cases,  "  when 
there  has  been  an  outrage  in  the  taking,  or  vexation  or  oppres- 
sion in  the  detention,  as  a  compensation  to  the  party  injured."  ^ 
Replevin  sounds  in  damages  like  trespass ;  and,  where  there  has 
been  outrage  in  the  taking,  or  vexation  and  oppression  in  the 
detention,  exemplary  damages  may  be  given." 

§  16.  It  is  held,  that,  while  damages  should  be  full  and  ample, 
but  not  vindictive,  or  beyond  what  has  been  really  suffered  ;  and 
the  language  used  by  the  judge  to  the  jury  was  ^^  exemplary  dam- 
ages :  "  yet,  if  the  jury  appear  not  to  have  gone  beyond  the  actual 
injury,  the  verdict  will  not  be  disturbed.^ 

§  17.  Vindictive  damages  should  never  be  allowed  against 
the  representative  of  a  deceased  iort-feasorP  In  an  amicable 
action,  to  try  the  respective  rights  to  a  division  wall,  part  of 
which  has  been  wrongfully  used  by  the  defendant ;  it  is  error  to 
instruct  the  jury,  that,  if  there  had  been  a  wanton  invasion  of 

1  Genay  v.  Norris,  1  Bay,  G.  6  Carey  v.  Bright,  .58  Pimiii.  70. 

2  Nye  V.  Merriam,  35  Vt.  438.  ^  Herdic  v.  Yuuiiir,  ;")'>  IVmi.  ITU. 

'  Gordon  v.  Jones,  2~i  Tex.  t)20.  8  Taylor  v.  Carpenter,  2  W.  &  >L  \. 

4  Barber  v.  Kilhourn,  1(5  Wis.  485.  9  Rippey  v.  Miller,  11  Ired.  247. 

6  Wiide  V.  Hexter,  50  Barb.  448. 


608  DAMAGES.  [book   V. 

the  plaintiff's  rights,  they  were  not  confined  to  the  actual  dam- 
ages.^    In  Maine,  vindictive    damages    are    not    intended  to  be 
given,  by  Rev.  Sts.  c.  154,  §  23,  against  a  shipmaster  transport- 
ing an  inftint.     Tlie  measure  is  the  value  of  the  child's  services 
up  to  the  time  of  bringing  the  suit,  or,  if  the  child  die  previously, 
up   to  his  death.'-^     In  an  action  for  nuisance,  the  plaintiff  can- 
not have   exemplary   damages,   if  the  defendant  exercised  due 
care  and  prudence  himself,  and  the  damage  occurred  by  reason 
of  the  neglect  of  his  workmen  to  follow  his  directions.^     Nor  vin- 
dictive damages  against  a  master  or  principal  for  the  act  of  his 
servant  or  agent,  unless  expressly  or  impliedly  authorized  or 
ratified.*     Nor  exemplary  damages,  in  an  action  of  trespass,  for 
building  a  house  on  the  land  of  tiie  defendant,  whereby  the  plain- 
tiff's house  is  darkened,  and  its  value  greatly  diminished.^     Nor 
for  mere  failure  to  pay  over  money  collected;  though  it  seems  it 
would  be  otherwise  in  a  case  of  special  damage  and  deception.^ 
So  a  mortgagor  in  possession  is  not  entitled  to  exemplary  damages 
on  account  of  the  mortgagee's  refusal  to  discharge  the  mortgage 
after  it  was  satisfied,  when  he  is  not  shown  to  have  been  damaged.^ 
§  18.  In  an  action  of  trespass,  for  the  wrongful  taking  and 
detention  of  slaves,  it  was  competent  to  show  malice,  and  thus 
increase  the  damages ;  but  not  to  prove  a  fact  which  was  legal  in 
itself,  and  had  no  tendency  to  show  that  the  act  was  unjustifiable 
or  wantonly  done.     As,  for  example,  the  institution  of  and  failure 
to  prosecute  an  action  by  the  defendant,  for  the  recovery  of  the 
slaves. s 

§  19.  While  the  motives  and  disposition  of  the  defendant  are 
often  an  important  subject  of  inquiry ;  on  the  other  hand,  al- 
though the  plaintiff  has  a  right  of  action,  the  jury  may  look  at  all 
the  circumstances,  and  at  the  conduct  of  both  parties,  and  if,  in 
going  on  with  the  action,  the  plaintiff  has  acted  in  an  obstinate 
and  perverse  manner,  they  may  take  that  into  consideration  when 
estimating  the  damages.  Thus,  the  plaintiff  delivered  to  a  rail- 
way company  certain  goods  to  carry  from  A  to  B,  paying  the 
carriage,  to  be  delivered  to  a  party  there.  Part  of  the  transit 
was  effected  by  another  railway  company,  which  refused  to  deliver 

1  Amer  v.  Longstreth,  10  Barr,  145.  5  Hays  v.  Askew,  7  Jones,  272. 

2  Jsickerson    v.    Harriman,   38  Maine,  ^  Neill  v.  Newton,  2-1  Tex.  202. 
277.  7  Mickie  V.  xMcGeliee,  27  Te.x.  134. 

3  Morford  v.  Woodworth,  7  Ind.  83.  8  Williams  v.  Kewberry,  32  Miss.  256. 
*  Hagan  i'.  Providence,  &c.,  3  R.  I.  88. 


CH.    v.]  SPECIAL,    EXEMPLARY,    AND    VINDICTIVE   DAMAGES.         609 

lip  tlie  goods  to  the  consignee  without  payment  of  an  additional 
specified  sum ;  but,  an  action  having  been  thieatened  against  the 
contracting  company,  an  offer  was  made  to  deliver  them  up  with- 
out that  payment.  The  action  was,  however,  persevered  in,  the 
plaintiff  declaring  against  the  company  as  carriers,  with  a  count 
in  trover  for  the  conversion  of  the  goods,  subsequently  to  which 
they  were  given  up  in  a  damaged  state.  Held,  that  the  additional 
sum  demanded  for  the  goods  was  not  the  measure  of  damage.  It 
was  also  questioned,  whether  the  plaintiff  could  recover  for  deteri- 
oration of,  and  damage  done  to,  his  goods  Avhile  detained  by  the 
company,  or  for  loss  of  profits  arising  from  his  being  deprived  of 
the  use  of  them  during  that  time.^  So  in  an  action  of  trespass, 
for  breaking  the  plaintiff's  close,  and  taking  certain  liquors, 
adjudged  to  be  forfeited  in  a  judicial  proceeding  to  which  he  was 
a  party :  he  cannot  recover  the  value  of  the  liquors ;  and,  if  the 
defendants  acted  in  good  faith,  believing  their  doings  to  be  author- 
ized, he  can  recover  only  nominal  damages.-  So  in  trespass,  for 
removal  of  goods  from,  and  destruction  of,  a  store  ;  the  defendant 
might  show,  in  mitigation  of  damages,  that  the  chief  business  was 
an  unlawful  traffic  with  slaves.^  So,  in  trespass,  for  an  injury  to 
a  vicious  and  annoying  animal,  only  nominal  damages  can  be 
recovered,  unless  actual  damage  is  proved.* 

1  Davis     V.    North-Western,     &c.,    4         ^  Boulard   v.    Calhoun,   13    La.    An. 

Hurl.  &  Nor.  855;   4  Jur.  (N.  S.)  1303,  445. 
Exch.  •!  Custard  v.  Burdett,  15  Tex.  456. 

-  Plummer  v.  Harbut,  5  Clarke,  308. 

39 


610  DAMAGES.  [book   V. 


CHAPTER    VI. 


DAMAGES    FOR    FRAUD,   ETC. 

1.  General  remarks.  5.  Miscellaneous  cases. 

3.  General  rule  of  damages;  value  of  the  7.  Exemplary  damages, 

property,  &c.  8.  Miscellaneous  cases. 

§  1.  Having  completed  our  view  of  those  general  rules  and 
principles  relative  to  damages,  which  seem  for  the  most  part 
indiscriminately  applicable  to  all  subjects,  injuries,  and  forms  of 
action,  we  proceed  to  a  consideration  of  the  separate  wrongs,  in 
relation  to  which  the  same  class  of  questions  arise.  From  the 
nature  of  the  case,  some  repetitions  must  occur  of  what  has  already 
been  more  generally  stated. 

§  2.  In  conformity  with  the  plan  heretofore  adopted,  we  proceed 
to  consider,  first  in  order,  the  subject  of  damages  for  that  injury 
which  connects  tort  and  contract,  namely,  fraud,  (a) 

§  3.  The  general  rule  is  laid  down,  that  the  proper  measure  of 
damages,  in  an  action  for  fraud  and  deceit  in  the  sale  or  exchange 
of  property,  retained  by  the  purchaser,  is  the  difference  between 
its  actual  and  represented  values  at  that  time  ;  the  price  paid 
being  strong,  but  not  conclusive,  evidence  of  the  latter.^  Thus 
the  measure  of  damages,  in  case  of  a  consignment  for  sale  in  fraud 
of  the  insolvent  law,  is  the  value  of  the  goods  when  the  unlawful 
preference  was  made,  not  when  the  consignee  might  avail  himself 
of  the  proceeds.^  So  where  the  purchaser  retains  the  property, 
and  where  numerous  misrepresentations  in  relation  to  it,  or  in 

1  Stetson  V.  Croskey,  52  Penn.   230;     (Iowa),  368.     See  Stevenson  r.  Greenlee, 
Carr  v.  Moore,  41  N.  H.  131 ;    Page  v.     15  Iowa,  96. 
Parker,  41  ib.  47  ;  Likes  v.  Baer,  8  Clarke         '^  Burpee  v.  Sparhawk,  97  Mass.  342. 

(a)  In  California,  a  complaint  may  set  show  fraud  at  the  inception  of  the  con- 
forth  a  breach  of  contract  on  the  part  ot  tract,  in  a  predetermination  not  to  carry 
the  defendants,  a  steamship  company,  to  it  out,  and  this  may  be  considered  by 
convey  the  plaintiff,  and  also  wrongs  and  the  jury  in  connection  with  the  subse- 
injuries,  resulting  in  physical  and  mental  quent  tortious  acts.  Jones  v.  Cortes,  17 
hardship,  committed  in  connection  with  Cal.  487. 
such  breach.      The  plamtiffs  may   also 


CH.    VI.]  DAMAGES   FOR    FRAUD,   ETC.  611 

relation  to  several  distinct  particulars  or  qualities  of  it,  were 
made  by  the  vendor,  some  of  which  may  be  material,  and  others 
immaterial,  some  fraudulent  and  others  honest,  though  all  false ; 
the  rule  of  damages  is  the  diiference  between  the  actual  value 
and  the  value  as  it  would  have  been  if  the  representation  had 
been  true,  in  those  particulars  concerning  which  the  false  and 
fraudulent  representations  were  made,  on  which  the  verdict  was 
founded.  In  such  case  the  price  paid  is  strong,  but  not  conclu- 
sive, evidence  of  the  value  of  the  property  as  it  was  represented 
to  be,  whether  such  representations  were  fraudulent  or  honest, 
provided  they  were  material.^ 

§  4.  The  same  rule  of  damages  is  adopted  in  case  of  fraudu- 
lent misrepresentations  in  the  sale  of  real  estate.^  (a)  So,  A  and 
B  being  cotenauts  in  common  of  a  vessel,  C  agreed  to  buy  the 
whole  vessel  of  A  for  a  certain  price.  A  afterwards  bought  of 
B  his  share  at  a  less  rate,  by  means  of  alleged  fraudulent  repre- 
sentations. In  an  action  of  B  against  A  for  such  fraud,  held,  on 
the  question  of  damages,  evidence  was  admissible  that  the  sum 
paid  B  was  the  full  value  of  his  share ;  but  that  the  price  to  be 
paid  by  C  was  strong,  though  not  conclusive,  evidence  of  the 
value.^     So,  in  a  suit  in  equity  for  relief  from  a  contract  into  which 

1  Page  u.  Parker,  43  N.  H.  3G3.  1G2 ;   Likes   v.   Baer,   8   Clarke    (Iowa), 

2  Muberly    v.    Alexander,    19    Iowa,     368. 

3  Matthews  v.  BUss,  22  Pick.  48. 

{a)  In  an  action  by  a  purchaser  against  ation  received  by  tlie  vendor;  but  only 
a  vendor  of  land,  tor  falsely  representing  the  difference  between  the  value  of  tiie 
that  a  mill  and  mill-pond  were  included  in  land  at  tlie  time  of  sale,  and  wliat  it  tlien 
the  tract  sold,  tiie  measure  of  damages  is  would  have  been  worth,  had  it  been  such 
the  diminution  of  the  value  in  conse-  as  the  defendant  represented  it.  Gates 
quence  of  the  mill  and  pond  not  being  v.  Reynolds,  13  Iowa,  1. 
on  the  land;  and  a  witness  will  not  be  A,  professing  to  have  autliority  from 
allowed  to  make  comparisons  between  the  owners  of  certain  premises,  granted  a 
the  actual  value  of  the  land  and  tlie  parol  lease  of  them  for  seven  years  to  B, 
value  upon  the  supposition  of  the  pond  and  let  him  into  possession.  The  own- 
being  on  other  land.  Poster?;.  Kennedy's  ers,  disavowing  the  authority  of  A, 
Adm'r,  38  Ala.  35U.  demanded  possession    from    B  ;   and,    on 

An  agent,  will),  by  false  representations  his  refusal,   brought   ejectment.      B,  re- 

as  to  the  demand  for  and  value  of  lands  lying   on    a    statement    of    A     tliat    he 

of  Ills   jirincipal,  jirocures  a  conveyance  had  authority,   and   tiiat    the   ejectment 

thereof  tor  less  than  they  are  worth,  and  would  not  be  persevered  in,  and  al.-^o  on 

nieanwiiile  negotiates   a' sale  to  a  thinl  the  advice  of  his  own  attorney,  deleiided 

party  for  a  much  greater  sum  ;  is  charge-  the  ejectment,  but    unsuccessfully,    and 

able  with   the  ditierence,  with  the  same  was  turned  out.     B  liaving  brought  an 

rate  of  interest  thereon  as  he  received  on  action  against  A  for  this  false  assumption 

the  deferred  pavnients.     Stoner  v.   Wei-  of  authority,  the  jury  found  that    A   had 

ser,  24  Iowa,  434.  acted   bond  ^fide  and   without    fraud,    and 

A  vendee  of  real  estate  sued  the  ven-  through  a  misajipreliension  that   he  had 

dor  for  false  and  fraudulent  representa-  authority.     Held,  B  was  not  entitled  to 

tions  at  the  time  of  sale,  but  did  not  offer  recover  the  costs   incurred  in  (k'fending 

to    rescind.      Held,    that    he    could  not  the  ejectment.     Pow  t;.  Davis,  1  Ell.,  B.  & 

recover  the  money  value  of  the  consider-  S.  220. 


612  DAMAGES.  [book   V. 

the  plaintiff  has  been  induced  to  enter  by  fraud,  the  court,  in 
ascertaining  the  value  of  the  consideration  fraudulently  obtained 
from  him,  will  adopt  the  price  fixed  by  the  parties  themselves  as 
the  value  of  shares  in  a  mining  company  transferred  by  him  as  a 
part  thereof,  if  the  price  fixed  does  not  appear  to  have  been  uncon- 
scionable, and  he  has  practised  no  fraud,  and  both  parties  had 
equal  opportunities  to  judge  of  their  value. ^  So,  by  the  laws 
of  Louisiana  and  Kentucky,  the  fraudulent  vendor  of  goods  is 
not  liable  to  vindictive  damages,  nor  to  the  costs  of  transpor- 
tation to  and  from  the  place  of  delivery.  The  measure  of  dam- 
ages is  the  difference  between  the  real  value  and  the  contract 
price.2 

§  5.  In  an  action  of  deceit  for  knowingly  selling  and  conveying 
to  the  plaintiff  more  land  than  the  defendant  had  title  to,  the 
measure  of  damages  is  the  pro  rata  value  of  that  part  of  the 
land  to  which  the  plaintiff  could  get  no  title,  and  the  expense  of 
perfecting  his  title  to  another  part.^ 

§  6.  The  measure  of  damages,  in  an  action  against  directors  of 
a  company  for  false  representations  as  to  its  affairs,  whereby  they 
induced  the  purchase  of  shares  which  were  worthless ;  is  the 
difference  between  the  purchase-money  paid  and  a  fair  price  at 
the  time.* 

§  7.  But  on  the  other  hand  it  is  held,  that  in  cases  of  fraud 
the  jury  may  give  exemplary  or  smart  damages.^  More  especially 
where  the  fraud  is  not  indictable.^  Thus,  for  deceit  in  a  sale,  the 
purchase-money,  with  interest,  is  held  not  the  proper  measure  of 
damages."  So  where  a  horse  having  a  contagious  disease  is  sold, 
and  the  seller,  though  having  knowledge  of  the  fact,  fails  to  give 
information  of  it,  he  is  liable  for  the  injury  caused  by  communi- 
cation of  the  disease  to  other  horses  of  the  buyer.^  So  a  railroad 
corporation,  who  fraudulently  put  an  end  to  a  contract  for  grading 
their  road,  pretending  to  act  under  a  power  reserved  to  them 
therein  to  terminate  the  same,  if  in  their  opinion  not  complied 
with  by  the  contractor;  are  liable  to  the  contractor  in  damages, 
including  any  loss  of  profit  sustained  by  him  by  the  breaking  off 

1  Franklin  v.  Greene,  2  Allen,  519.  5  Oliver  v.  Chapman,  15  Tex.  400 ;  Nye 

-  Singleton  v.  Kennedy,  9  B.  Monr.  v.  Merriam,  35  Verm.  438.     See  p.  607. 
222.  6  Millison  v.  Hoch,  17  Ind.  227. 

3  Parker  v.  Walker,  12  Rich.  138.  7  Brown  v.  Sliields,  6  Leigh,  440. 

*  Huntington  v.  Massey,  1   F.   &  F.  8  Paris  v.  Lewis,  2  B.  Monr.  375. 

690. 


CH.    VI.]  DAMAGES    FOR   FRAUD,    ETC.  613 

of  the  contract. 1  So,  in  an  action  for  deceit  in  selling  a  vessel 
as  British,  when  she  was  not,  nor  entitled  to  a  British  national 
character  ;  the  plaintiff  may  recover  the  difference  of  value  of 
the  vessel,  as  sold,  and  her  value  if  her  real  character  had  been 
known,  and  also  the  amount  of  such  repairs  made  on  her,  on  the 
faith  of  the  representation,  as  had  not  been  remunerated  by  her 
earnings,  or  in  any  other  way.^ 

§  7  a.  Where,  in  a  suit  upon  a  sale  of  tobacco,  to  be  manu- 
factured according  to  a  sample,  it  appeared  that  the  tobacco  was 
inferior  and  damaged,  and  was  fraudulently  packed  in  boxes 
made  of  green  lumber,  whereby  it  became  unsalable :  held,  the 
measure  of  damages  was  the  actual  loss,  ascertained  by  deduct- 
ing the  market  value  at  the  time  of  delivery,  from  the  market 
value  of  that  which  was  contracted  for ;  to  which  the  jury  were 
at  liberty  to  add  something  by  way  of  punishment.*^ 

§  7  6.  In  an  action  for  deceit,  in  a  sale  to  the  plaintiff  which  he 
has  repudiated,  the  only  correct  measure  of  damages  is  that 
which  would  apply  if  the  defendant  had  wantonly  broken  his 
agreement  to  sell.'^ 

§  7  c.  In  an  action  for  misrepresenting  the  value  of  property 
sold,  a  witness  may  testify  as  to  the  value  of  a  part  of  the 
property.^ 

§  7  cZ.  Where  one  sells  a  lot  of  sheep,  falsely  representing  them 
to  be  free  from  certain  diseases,  and  other  sheep  owned  by  the 
vendee  contract  the  same  diseases  from  the  sheep  so  sold  ;  the 
vendee  may  recover  damages  for  the  injuries,  whether  the  ven- 
dor knew  of  the  vendee's  possession  of  other  sheep  or  not.*^ 

§  7  e.  In  an  action  of  deceit  upon  the  sale  of  a  negro,  the  measure 
of  damages  was  held  to  be  the  difference  between  the  negro's 
value  as  an  incorrigible  runaway,  and  as  it  would  have  been  if 
he  had  possessed  the  good  qualities  alleged  by  the  vendor's  agent 
at  the  time  when  and  place  where  he  was  purchased.  But  this 
does  not  apply  to  damages  caused  directly  by  the  negro's  habit 
of  running  away  ;  as,  e.g.,  those  incurred  in  capturing  him.'' 

§  8.  Where  a  ship-master  received  divers  casks  of  lime  on 
freight,  consigned  to  him  for  sale,  which  had  been  duly  inspected 
and  branded,  and  were  represented  by  the  owner  as  good  lime, 

1  Philadelphia,  &c.  V.  Howard,  13  How.  ^  Warren  v.  Cole,  15  Mich.  2C^b. 
307.  *  Winslow  v.  Newlan,  45  III.  145. 

2  Sherwood  v.  Sutton,  5  Mas.  1.  ^  Sherrod  v.  Langdon,  21  luwa,  518. 

3  McAroy  v.  Wright,  25  Ind.  22.  '>  Morton  v.  Scull,  23  Ark.  289. 


614  DAMAGES.  [book   V. 

and  accordingly  sold  as  such  by  the  master,  but  in  fact  were  filled 
with  substances  of  little  or  no  value ;  whereupon  he  was  sued  by 
the  vendee,  and  obliged  to  respond  to  him  in  damages,  having 
given  the  owner  immediate  notice,  and  faithfully  and  prudently 
defended  the  suit :  held,  he  might  recover  of  the  owner  the 
amount  of  the  judgment  recovered  against  himself,  with  all  neces- 
sary costs  and  expenses,  and  that  a  copy  of  the  judgment  was 
admissible  evidence.^ 

§  9.  One  obliged  to  take  steps  to  relieve  himself  from  another's 
fraud  may  generally  recover  his  attorney's  fees  as  special  dam- 
ages. Otherwise,  where  he  sets  up  fraud  in  a  contract  as  a 
defence  to  an  action  thereon.^ 

§  10.  A  sold  to  B  a  bill,  representing  it  as  unpaid,  when  he 
knew  it  had  been  paid.  B  transferred  it  to  C,  and  afterwards, 
having  it  in  his  possession,  he  sued  A  for  the  fraudulent  sale. 
Held,  B's  possession  enabled  him  to  sustain  the  action,  and  the 
measure  of  damages  was  the  amount  of  the  bill,  with  interest.^ 

§  11.  Action  by  C,  in  the  name  of  A,  against  B,  on  a  promissory 
note  payable  by  B  to  A.  At  the  time  the  note  was  given,  A  had 
secretly  given  a  defeasance  to  B,  with  intention  to  defraud  who- 
ever might  purchase  the  note.  C  had  purchased  the  note,  in 
ignorance  of  the  defeasance,  paying  for  it  partly  in  money  and 
partly  by  his  own  note  to  B,  which  B  had  sold  to  D  for  its  full 
value,  D  also  being  ignorant  of  the  fraud.  Held,  the  rule  of 
damages  to  C  was  the  amount  of  the  note  in  suit  and  interest ;  B, 
a  party  to  the  fraud,  not  being  entitled  to  any  deduction,  on  the 
ground  that  C,  when  sued  on  his  note  by  D,  in  B's  name,  could 
avoid  it.^ 

§  12.  In  an  action  for  misrepresenting  the  location  of  a  mill, 
privileges,  and  land  described  in  a  deed,  the  vendee  retaining  so 
much  as  actually  passed ;  the  measure  of  damages  is  the  expense 
of  obtaining  by  writ  ad  quod  damnum,  or  other  equally  cheap 
and  speedy  remedy,  the  land  falsely  represented  to  pass.^ 

§  13.  Where  a  printer,  having  contracted  to  print  for  his 
employer  a  thousand  copies  of  a  book,  and  no  more,  printed  from 
the  same  types,  while  set  up  at  the  expense  of  his  employer,  five 
hundred  other  copies,  for  his  own  disposal ;  he  was  held  liable  to 

1  Henderson  v.  Sevey,  2  Greenl.  139.  *  Lyon  v.  Summers,  7  Conn.  399. 

2  Flack  V.  Neill,  22  Tex.  253.  5  Reynolds  v.  Cox,  11  Ind.  262. 

3  Spikes  V.  English,  4  Strobh.  34. 


CH.    VI.]  DAMAGES    FOR   FRAUD,    ETC.  C15 

refund  to  his  employer  one-third  part  of  the  expense  of  setting  up 
the  types,  no  actual  damage  having  been  proved. ^ 

§  14.  Tlie  laws  of  Alal)ama  permit  the  defendant,  in  an  action 
on  a  sealed  instrument,  to  impeach  the  consideration,  as  if  the 
writing  were  not  under  seal;  they  also  permit  such  instrument  to 
be  assigned  by  indorsement,  and  the  assignee  to  sue  in  his  own 
name,  allowing  the  defendant  the  benefit  of  all  payments,  dis- 
counts, and  set-offs,  made,  had,  or  possessed  against  the  same, 
previous  to  notice  of  the  assignment,  in  the  same  manner  as  if 
the  suit  were  brought  by  the  obligee  or  payee.  Held,  the  defend- 
ant, in  a  suit  brought  by  the  assignee  of  a  bond  given  for  the 
price  of  a  chattel,  might  prove,  in  reduction  of  damages,  that  the 
sale  was  effected  by  means  of  false  representations  on  the  part  of 
the  payee  as  to  the  value  of  the  chattel,  although  the  chattel  had 
not  been  returned  or  tendered  to  the  plaintiff.'-^ 

§  lo.  In  an  action  for  deceit  in  procuring  a  receipt,  where  the 
defendant,  as  agent  of  the  maker  of  a  note  payable  to  the  plain- 
tiff, by  fraud  and  misrepresentation  prevailed  on  the  plaintiff  to 
accept  notes  against  insolvent  persons,  and  give  a  receipt  in  full 
discharge  of  his  note  ;  the  plaintiff  is  entitled  to  recover  nominal 
damages,  although  the  maker  of  the  note  which  he  gave  up  was 
also  insolvent.''^ 

§  16.  Lands  fraudulently  transferred,  by  means  of  a  judicial 
sale,  descended  to  the  heirs  of  the  alienee,  who,  without  notice 
of  the  fraud,  assigned  them  in  partition  to  A,  one  of  such  heirs. 
A  took  possession,  paid  the  annual  taxes,  and  bond  fide  made 
valuable  and  permanent  improvements.  A  judgment-creditor 
filed  his  petition  against  the  alienor  and  the  heirs,  to  set  aside 
the  transfer  for  fraud,  and  subject  the  lands  to  payment  of  the 
judgment.  Held,  A  was  entitled,  in  this  proceeding,  to  equitable 
compensation  for  his  expenditures  from  the  proceeds  of  any  sale 
which  might  be  ordered  ;  and  an  answer,  claiming  such  compen- 
sation, was  good,  on  demurrer;  and  that  a  decree,  merely  saving 
the  rights  of  A  under  the  occupying  claimant  law,  and  ordering 
that  the  property  be  appraised  and  sold,  was  erroneous.* 

•  Williams  i'.  Gilnian,  3  Greenl.  27G.  *  Bombcrcer    v.     Turner,     13     Ohio, 

'^  Withers  v.  Greene,  9  How.  218.  G61.      203. 
3  Ledbetter  v.  Morris,  3  Jones,  543. 


616  DAMAGES.  [book   V. 


CHAPTER  VII. 


INJURIES   TO   THE   PERSON  ;    ASSAULT   AND    BATTERY ;    FALSE  IMPRISON- 
MENT ;    INJURIES   TO    HEALTH. 

1.  Assault,  &c.,r— exemplary  damages.  6.  False  imprisonment,  —  malicious  arrest. 

2  rt.  Mitigation,  — provocation;    criminal         11.  Injury  to  health, 
prosecution,  &c. 

§  1.  The  plaintiff  in  an  action  for  a  simple  assault  and  battery, 
without  alleging  special  damages,  is  not  confined  to  merely  nomi- 
nal damages,  but  may  recover  such  general  damages  as  he  may 
prove  to  have  resulted  from  the  injury. ^ 

§  1  a.  The  damages  may  include  bodily  pain  and  suiferiug.^ 
The  jury  may  consider  the  injury  inflicted  by  the  blow,  the 
expense  incurred,  loss  of  time,  of  hearing,  of  peace  of  mind,  and 
individual  happiness,  occasioned  by  the  injury .^  So,  in  estimating 
damages  for  an  unintentional  but  reckless  assault,  the  jury  may 
consider  the  pain  as  well  as  the  wounded  feelings  of  the  female 
plaintiff.^  (a)  And  for  an  unprovoked  and  aggravated  assault 
exemplary  damages  may  be  given.^  So,  as  we  have  already  seen 
(Chap,  v.),  damages  may  be  allowed  for  circumstances  of  insult, 
&c.^  So,  also,  for  any  natural  and  necessary  consequences,  even 
those  subsequent  to  the  trial."  Thus  a  verdict  for  $85,  for  a 
violent  beating  and  wounding  with  an  axe,  was  held  not  exces- 
sive ;  nor  would  a  much  higher  verdict  be  considered  extra va- 

1  Andrews  v.  Stone,  10  Minn.  72.  5  Foote  v.  Nichols,  28  Ind.  486. 

2  Ransom  v.  New  York,  &c.,  15  N.  Y.  6  Bracegirdle  v.  Orford,  2  M.  &  S.  77; 
(1  Smith)  415.                                                  Tullidge  v.  Wade,  3  Wils.  19. 

»  Cox  V.  Vanderkleed,  21  Ind.  164.  ?  Fetter  v.  Beale,  1  Ld.  Ray.  339  ;  Moor 

4  West  V.  Forrest,  22  Mis.  344.  v.  Adam,  2  Chit.  198. 

(a)  Where  brutal  violence  is  used  to  the  intercourse  should  not  be  taken  as 

overcome  the  resistance  of  a  female,  and  the  basis  of  damages.     If  consent  is  ob- 

her  ultimate  consent  to  sexual  intercourse  tained  by  such  violence,  the  intercourse 

is  obtained,  although  not  in  consequence  is  a  part  of  the  assault  and  a  ground  for 

of  such  violence,  a  right  of  action  for  the  exemplary  damages.     Dickey  v.  McDou- 

previous  violence  clearly  remains.     But  nell,  41  lU.  62. 


CH.    VII.]  INJURIES   TO    THE   PERSON,    ETC.  617 

gant,  especially   where  it   was  proved  that  the  defendant  was 
amply  able  to  pay  it.^ 

§  2.  But  it  is  sometimes  held,  that  the  court  caunot  instruct 
the  jury  to  allow  "  smart  money  "  in  an  action  for  assault  and  bat- 
tery .^  And,  in  trespass  for  an  assault  and  battery  upon  the  child 
or  servant  of  the  plaintiff,  the  measure  of  damages  is  the  actual 
loss  of  the  plaintiff;  and  exemplary  damages  cannot  be  given, 
though  the  assault  be  of  an  indecent  character,  upon  a  female, 
and  under  circumstances  of  great  aggravation.^  (a)  And  the 
plaintiff  cannot,  for  the  purpose  of  showing  special  damages, 
prove  that  by  reason  thereof  he  lost  a  position  to  which  he  was 
about  to  be  appointed,  although  the  declaration  so  avers.'* 

§  2  a.  In  an  action  for  trespass  upon  the  person,  evidence  was 
held  admissible,  in  mitigation  of  damages,  of  the  defendant's 
declaration  while  in  the  commission  of  the  trespass,  that  he  was 
doing  it  because  the  plaintiff  had  traded  with  his  negroes.'^  The 
defendant  may  prove,  in  mitigation  of  damages,  that  the  plaintiff, 
immediately  before  the  assault,  charged  him  with  a  crime.  But 
the  plaintiff  cannot,  in  reply,  go  into  proof  that  the  charge  was 
true.  Nor  the  defendant,  that  the  charge  was  false.  The  evi- 
dence is  admissible  solely  for  the  purpose  of  showing  that  the 
defendant  acted  under  the  sudden  provocation  of  the  charge,  and 
not  from  premeditated  malice.*"  And  provocation,  to  be  admitted 
in  mitigation  of  damages,  must  be  so  recent  and  immediate,  as  to 
induce  a  presumption  that  the  violence  done  was  committed 
under  the  immediate  influence  of  the  feelings  and  passions  excited 
by  it.  The  defendant  cannot  give  evidence  of  acts  or  declara- 
tions of  the  plaintiff  at  a  different  time,  or  any  antecedent  facts 
which  are  not  fairly  to  be  considered  as  part  of  one  and  the  same 
transaction,  however  irritating  and  provoking."  And  no  provo- 
cation, amounting  to  less  than  justification,  will  render  the  defend- 
ant liable  in  less  than  compensatory  damages.^ 

1  Gore  V.  Chadwick,  6  Dana,  477.  5  Gilliam  v.  Love,  30  Ga.  8G4. 

-  Mooney  v.  Kennett,  19  Mis.  551.  ''  Bartrain  v.  Stone,  31  Conn.  159. 

*  Whitney    v.    Hitclicock,    4    Dcnio,         "  Lee  v.  Woisey,  19  Joiins.  329.     See 
461.  Corning  v.  Corning,  1  Seld.  97. 

*  Brown  v.  Cummings,  7  Allen,  507.  **  Bircliard  v.  Bootli,  4  Wis.  G7. 

{(i)  In  a  snit  for  assault  and  battery,  which  lie  had  charged  to  tlie  jjlaintifl',  and 

the    jilaintifl'   alleged    that    he  had  been  of  which  none  had  been  paid,     llekl.  the 

"obliged   to    pay"    large    sums    to    get  evidence  did  not  support  the  allegation, 

cured.     His  jjhysician   testified,   that  his  Ward  v.  Haws,  5  Min.  440. 
services   had  been  worth  a  few   dollars, 


618  DAMAGES.  [book  V. 

§  3.  It  is  competent,  for  the  purpose  of  mitigating  vindictive 
damages,  to  show  that  the  defendant  has  been  convicted  and 
punished  at  the  suit  of  the  State.^ 

§  4.  That  the  plaintiff  had  prosecuted  the  defendant's  child 
for  malicious  mischief,  whereupon  the  defendant  committed  the 
assault,  is  not  matter  in  mitigation  of  damages.^ 

§5.  Whore  the  defendants  accused  the  plaintiff  of  stealing  a 
watch,  and  wiiipped  him  to  get  it  back  ;  held,  he  might  show, 
upon  the  question  of  damages,  that  he  was  (to  the  knowledge  of 
the  defendants)  of  weak  mind.^ 

§  6.  In  an  action  for  false  imprisonment  although  without 
malice,  the  plaintiff  may  recover  for  loss  of  time,  interruption  of 
business,  and  bodily  and  mental  suffering,* 

^  Q  a.  In  an  action  for  malicious  arrest^  injury  to  credit  is  not 
ground  of  special  damage.^ 

§  7.  It  is  held,  that  damages  may  be  awarded  by  way  o^  punish- 
ment, but  not  to  an  arbitrary  amount.  Thus  a  verdict  for  $2000 
for  a  short  detention  in  the  police-office,  the  plaintiff  being  dis- 
charged for  want  of  any  appearance  against  him,  was  set  aside 
as  excessive.^ 

§  8.  In  New  York,  evidence  may  be  given,  in  mitigation  of 
damages,  without  having  filed  any  answer,  on  the  execution  of  a 
writ  of  inquiry.'' 

§  9.  In  an  action  for  assault  and  false  imprisonment,  it  is  no 
ground  of  new  trial,  that  the  plaintiff  had  expended  11.  14s.  in 
procuring  a  discharge  from  custody,  but  the  jury  awarded  him 
only  a  farthing.^ 

§  10.  Where  the  defendant  caused  the  plaintiff  to  be  arrested 
upon  an  unfounded  charge,  and  detained  from  11^  to  2  o'clock: 
held,  damages  could  not  be  allowed,  upon  the  ground  that  the 
plaintiff  would  have  been  engaged  as  a  journeyman  by  A  if  he 
had  presented  himself  at  the  factory  at  two  o'clock  ;  but,  being 
unwell  from  the  imprisonment,  he  did  not  go  to  tlie  factory  till 
the  next  morning,  when  another  had  been  engaged.  In  this 
recent  case,  the  court  suggested  some  considerations  in  reference 

1  Smitliwick  v.  Ward,  7  Jones,  G4.  6  Brown  v.  Chadsey,  39  Barb.  253. 

-  Schlosser  v.  Fox,  14  Iiid.  365.  ^  Hays  v.  Berryman,  6  Bosw.  679. 

3  Ously  V.  Hardin,  23  111.  403.  »  Bradlaugh  v.   Edwards,  11  Com.  B. 

4  Parsons  v.  Harper,  16  Gratt.  64.  (N.  S.)  376. 

5  Macfarlane  v.  Ellis,  1  E.  &  F.  288. 


CH.    VII.]  INJURIES  TO   THE   PERSON,   ETC.  619 

to  remote  damages,  wliicli  are  of  general  applicability  and  of  much 
value :  "  The  damage  does  not  immediately,  and  according  to  the 
common  course  of  events,  follow  from  the  defendant's  wrong ; 
they  are  not  known  by  common  experience  to  be  usually  in 
sequence.  The  wrong  would  not  have  been  followed  by  the 
damage,  if  some  facts  had  not  intervened  for  which  the  defendant 
was  not  responsible.  Thus,  there  was  the  act  of  the  plaintiff, 
who  returned  home  instead  of  going  to  the  factory  and  explain- 
ing ;  and,  although  it  was  said  he  was  unwell,  ...  it  was  not 
suggested  that  he  was  so  unwell  as  to  be  unable  to  go.  There 
was  also  the  act  of  the  intended  employer,  changing  his  purpose 
in  respect  of  the  plaintiff."  ^ 

§  10  a.  Where  a  private  person  makes  an  arrest  under  circum- 
stances which  do  not  justify  him,  but  would  justify  an  officer,  he 
should  be  held  to  pay  reasonable  and  fair  damages,  according  to 
the  circumstances,  mitigated  by  the  reasonable  or  probable  causes 
that  induced  it.  Where  such  arrest  was  made  upon  strong  grounds 
for  suspecting  larceny,  a  verdict  of  $3000  was  set  aside  as  exces- 
sive.^ 

§  10  &.  Where  the  plaintiff  was  arrested  and  imprisoned  for 
refusing  to  testify  under  a  void  complaint,  placed  in  the  custody 
of  the  sheriff  at  the  jail,  but  not  locked  in  the  cell  which  was  given 
him  as  a  sleeping-room,  and  was  allowed  to  visit  freely  the 
sheriff's  apartments,  being  only  restrained  from  leaving  the  jail- 
yard  ;  he  is  entitled  to  more  than  nominal  damages,  i.e.,  sufficient 
to  pay  him  for  his  loss  of  time.  In  such  case  the  jury  are  entitled 
and  required  to  find  general  damages,  as  well  as  any  special 
damages,  which  are  proved.^ 

§  11.  In  an  action  against  a  surgeon,  ihe  increased  amount  paid 
to  another  surgeon,  to  effect  a  cure,  by  reason  of  injuries  result- 
ing from  the  unskilful  treatment  of  the  defendant,  may  properly 
be  considered  by  the  jury  ;  and  that  is  the  proper  limit.^ 

1  Hoey  V.  Felton,  11  C.  B.  140 ;  per  3  page  v.  Mitchell,  13  Mich.  63. 
Erie,  C.  J.,  ib.  146.                                             4  Leighton  v.  Sargent,  11  Fost.  119. 

2  Keuck  V.  McGregor,  3  Vroom,  70. 


620  •  DAMAGES.  [book  V. 


CHAPTER  VIII. 

LIBEL,    ETC.,   AND    MALICIOUS   PROSECUTION. 

1.  Measure  and  grounds  of  damages ;  spe-        10.  Plea  of  the  truth;  mitigation  of  dam- 
cial  and  exemplary  damages ;  wealth  of  the     ages, 
defendant.  15.  Malicious  prosecution. 

§  1.  In  an  action  for  libel,  the  actual  damages  are  to  be  deter- 
mined b}^  the  jury,  upon  a  careful  consideration  of  the  charge 
against  the  plaintiff,  the  circumstances  of  the  publication,  the 
extent  of  its  circulation,  and  the  natural  and  necessary  conse- 
quences of  such  a  publication,  according  to  the  results  of  human 
experience.^  It  is  held,  that  the  jury  are  at  liberty  to  give  puni- 
tive damages.^  (See  Chap.  Y.)  So  in  an  action  of  slander,  in 
case  of  actual  malice,  it  is  held  that  exemplary  damages  may  be 
given.^  And  this,  more  especially,  if  accompanied  by  another 
form  of  actionable  injury.  Thus,  in  a  late  case,  where  the  defend- 
ant charged  a  female  with  larceny,  commenced  a  criminal  prose- 
cution against  her,  and  had  her  arrested  for  that  offence,  and 
persisted  in  the  prosecution  after  being  advised  by  able  and 
learned  counsel  to  desist ;  a  verdict  for  $1400  was  held  not  exces- 
sive. The  court  remarked :  "  The  result  will  probably  make  the 
defendant  wiser  for  the  future,  and  have  a  good  influence  upon 
others,  who  are  tempted  to  gratify  feelings  of  revenge  at  the 
expense  of  female  character."'^ 

§  2.  In  an  action  against  a  railroad  corporation  for  a  libel,  the 
jury  cannot  find  damages  for  a  publication  made  after  the  com- 
mencement of  the  suit ;  nor  exemplary  damages,  without  proof 
that  the  act  was  done  maliciously  or  wantonly.^ 

§  3.  Where,  in  an  action  for  slander,  no  special  damages  are 
claimed  by  the  petition,  and  there  is  no  evidence  of  actual  dam- 

1  Fry  V.  Bennett,  3  Bosw.  200.  *  Humphries  v.  Parker,  52  Maine,  502 ; 

2  Hunt  V.  Bennett,  19  N.  Y.  (5  Smith)     per  Walton,  J.,  ib.  508. 

173.  5  philadelpliia,  &c.  v.  Quigley,  21  How. 

3  Knight  V.  Foster,  39  N.  H.  576.  202. 


CH.    Till.]  LIBEL,   ETC.,   AND   MALICIOUS   PROSECUTION.  621 

f 

age,  a  new  trial  cannot  be  allowed,  because  the  jury  gave  only 
nominal  damages.^ 

§  4.  In  an  action  of  slander,  the  following  instructions,  taken 
together,  were  held  correct;  being  given  after  stating  the  differ- 
ent kinds  of  damages :  "  Compensatory  damages  are  given,  where 
the  Avords  were  spoken  without  malice,  but  under  circumstances 
which  show  a  want  of  caution,  and  a  proper  respect  for  the  rights 
of  the  plaintiff.  Compensatory  damages  are  such  as  will  pay  the 
plaintiff  for  his  expenses  and  trouble  in  carrying  on  the  suit,  and 
disproving  the  slanderous  words ;  the  character  of  the  plaintiff 
can  never  be  considered,  until  the  jury  come  to  the  question  of 
giving  vindictive  or  exemplary  damages."  ^ 

§  5.  In  case  of  slander  of  a  physician,  as  such,  the  currency  of 
the  slanderous  report  in  the  place  of  his  practice,  following  its 
utterance  by  the  defendant,  may  be  given  in  evidence,  as  well  as 
the  effect  of  such  report  upon  the  professional  gains  of  the  plain- 
tiff, in  aggravation  or  proof  of  damages,  without  strict  proof  con- 
necting the  current  report  with  the  slander  of  the  defendant ;  the 
fact  of  such  connection  being  for  the  jury,  and  not  for  the  court, 
to  pass  upon.2 

§  6.  In  an  action  by  a  surgeon  for  slander,  imputing  that  a 
female  servant  had  had  a  bastard  child  by  him,  whereby  D  would 
not  employ  him  as  an  accoucheur,  and  the  plaintiff  was  otherwise 
injured  in  the  way  of  his  business  ;  it  was  proved  that  the  words 
were  spoken  by  the  defendant  in  conversation  with  D.  Held,  that 
the  plaintiff  was  not  entitled  to  recover  such  damages,  in  respect 
of  a  general  loss  of  business,  as  might  have  been  caused  by  repe- 
titions of  the  slander,  but  could  not  have  arisen  directly  from  the 
speaking  of  the  words  by  the  defendant  to  D.'* 

§  7.  In  an  action  of  slander,  for  charging  the  plaintiff  with 
having  illicit  intercourse  with  a  married  woman,  and  thereby 
committing  the  crime  of  adultery ;  the  defendant  may  prove,  in 
mitigation  of  damages,  that,  before  the  speaking  of  the  words,  the 
plaintiff's  general  character  and  rc[)utation  in  the  community  for 
chastity  was  bad,  and  that  he  was  generally  reputed  in  the  com- 
munity to  be  an  unchaste  and  licentious  man.     Such  evidence  is 

1  Irwin  V.  Cook,  24  Tex.  244.  8  Rice  r.  Cottrel,  5  R.  I.  340. 

2  AriiLstrong  v.  Pierson,  8  Clarke  *  Dixon  v.  Smith,  5  Hiu'l.  &  Nor. 
(Iowa),  20.  450. 


622  DAMAGES.  [book   V. 

not  restricted  to  the  reputation  of  the  plaintiff  in  reference  to  the 
crime  of  adultery .^     (See  §  12.) 

§  8.  It  is  held,  in  late  cases,  that  in  an  action  for  slander 
the  plaintiff  may  prove  the  pecuniary  condition  of  the  defendant 
to  increase  the  damages.^  The  wealth  of  the  defendant  is  said  to 
be  "  an  element  which  goes  to  make  up  his  rank  and  influence  in 
society,  and  therefore  his  power  to  injure  the  plaintiff  by  his 
speech. "  ^  (a) 

§  9.  Anxiety  and  distress  of  mind  caused  by  a  slander  may  be 
proved  in  aggravation  of  damages,  though  the  charge  was  made 
against  the  plaintiff  as  a  physician  only.^ 

§  9  a.  L.,  a  step-brother  of  the  wife  of  K.,  spoke  slanderous 
words  to  K.,  imputing  to  Mrs.  K.  gross  levity,  and  asserting  that 
she  had  been  all  but  seduced  by  another  man  before  marriage. 
The  husband  thereupon  dismissed  her,  and  sent  her  to  her  father. 
She  (joining  her  husband,  as  co-plaintiff,  for  conformity)  brought 
an  action  against  L.,  alleging  her  loss  o£  the  husband's  consor- 
tium as  special  damages.  Held,  whether  or  not  the  action  lay, 
the  damages  were  too  remote  ;  not  being  the  natural  and  prob- 
able consequence  of  the  injury  complained  of;  seeing  that  no 
husband,  acting  reasonably,  would  dismiss  a  wife  on  an  unsup- 
ported charge  of  gross  levity,  when  no  actual  adultery  was 
imputed.^  (b) 

'  Bridgman    v.    Hopkins,    34    Verm.         ^  Humphries  v.  Parker,  52  Maine,  502 ; 

532.  ib.  508,  per  Walton,  J. 

2  41   111.  142;  Kamey    v.   Paisley,   13  4  Swift  w.  Dickerman,  31  Conn.  285. 

Iowa,  89  (questioned  in  Law  Reg.,  August,         ^  Lynch  v.  Knight,  5  L.  T.  (N.  S.)  291 

1863,  p.  639) ;  52  Maine,  502.  —  H.  L. 

(a)  In  a  late  case  it  is  held,  that  the  slanderer,  for  the  special  damage  caused 
jury  may  take  into  account  the  pecuniary  to  her  by  the  loss  of  the  husband's 
circumstances  of  the  defendant,  as  well  consortium.  Lords  Wensleydale  and 
as  the  character  of  the  plaintiff,  and  also  Brougham,  that  a  married  woman  can- 
the  reiteration  of  the  slander  at  ditferent  not  maintain  an  action  for  being  deprived 
times  and  to  different  persons,  and  also  of  the  society  of  her  husband  by  the  slan- 
any  eifort  the  defendant  has  made  to  have  der  of  another  upon  her  character,  though 
the  plaintiff  indicted ;  and  they  may  give  the  husband  deserts  her  in  consequence, 
exemplary  damages.  Harbison  v.  Shook,  LordWensleydale,tiiat,  although  no  action 
41  111.  142.  lay,  yet  the  desertion  by  the  husband  was 

(b)  In  this  case  the  several  judges  in-  properly  laid  as  special  damage  ;  for,  to 
cidenlally  expressed  their  views  as  fol-  make  words  actionable  by  reason  of 
lows  :  Lords  Campbell  and  Cranworth,  special  damage,  the  consequence  must  be 
that,  where  a  person  imputes  to  a  married  such,  as,  taking  human  nature  as  it  is, 
woman  adultery,  which  he  pretends  to  with  its  infirmities,  and  having  regard  to 
know  and  assert  as  a  fact,  and  the  bus-  the  relationship  of  the  parties  concerned, 
band,  reasonably  believing  the  charges  might  fairly  and  reasonably  have  been 
to  be  true,  dismisses  her,  the  wife  is  anticipated  to  follow  from  the  speaking 
entitled  to  maintain  an  action  (joining  of  the  words,  and  need  not  be  such  as 
her  husband  for  conformity)  against  the  would  reasonably  follow.     Lords  Camp- 


CH.   VIII.]  LIBEL,   ETC.,   AND   MALICIOUS    PROSECUTION.  623 

§  10.  It  is  held,  that  a  plea  of  the  truth,  in  slander,  made  in 
good  faith,  under  an  honest  belief  in  the  truth  of  the  words 
uttered,  and  with  reasonable  grounds  for  such  belief,  furnishes 
no  cause  for  exemplary  damages.  "  The  motive  with  which  the 
justification  was  pleaded,  is  for  the  consideration  of  the  jury.  If 
they  find  that  it  was  done  with  the  intention  to  injure  the  plain- 
tiff, the}^  may  rightfully  consider  it  an  aggravation  of  damages  ; 
but  where  no  wrongful  intention  is  found,  there  is  no  just  ground 
for  the  punishment  of  the  defendant."  ^ 

§  11.  In  an  action  of  slander,  circumstances  which  disprove 
malice,  but  do  not  tend  to  establish  the  truth  of  the  charge,  may 
be  given  in  evidence  in  mitigation  of  damages.^  And  it  is  some- 
times held,  that  evidence  may  be  available  in  mitigation  of  dam- 
ages, though  it  tends  to  prove  the  truth,  but  does  not  necessarily 
prove  it.^     (See  §  7.) 

§  12.  In  an  action  for  a  libel,  the  defendant  cannot  prove,  in 
mitigation  of  damages,  an  independent  libel  on  himself  by  the 
plaintiff.  Otherwise,  where  such  libel  by  the  plaintiff  affords  a 
reasonable  presumption  that  it  provoked  the  libel  by  the  defend- 
ant, or  where  it  impliedly  refers  to  it,  or  explains  the  meaning  of 
it  or  the  occasion  of  writing  it.^ 

§  13.  To  authorize  proof  of  mitigating  circumstances,  as  rebut- 
ting the  presumption  of  malice,  it  must  appear  that  they  were 
known  to  the  defendant  at  the  time.^ 

§  14.  In  an  action  of  slander,  for  saying  that  the  plaintiff,  a 
physician,  had  no  professional  knowledge  or  skill,  and  lost  almost 
all  his  patients ;  evidence  is  inadmissible,  in  mitigation  of  dam- 
ages, of  particular  instances  of  ignorance  or  want  of  skill. '^ 

§  15.  Under  a  declaration,  that  the  defendant,  without  probable 
cause,  maliciously  sued  out  a  writ  against  the  plaintiff  from  a 
court  which  had  no  jurisdiction  of  the  plaintiff,  and  attached  his 


1  Ravmond  v.   Kinney,  14    Oliio   St.  ^  Swift  v.  Dickerman,  31  Conn.  285. 

283  ;  per  Wilder,  J.,  ib.  287 ;  Clement  v.  *  Child  v.  Homer,  13  Pick.  503. 

Brown,  30  III.  43.  5  Swift  v.  Dickerman,  31  Conn.  286. 

■^  Oilman    v.    Lowell,   8    Wend.    573,  •*  Ib. 
See  Porter  v.  Henderson,  11  Mich.  20. 

bell  and  Brougham,  tliat  the  law  of  Eng-  chastity  of  a  modest  matron  or  pure  vir- 

land   is   barbarous   in    holding    tliat    an  gin,  is  not  actionable,  without  proof  that 

imputation  by  words,  however  gross,  on  it  has  actually  produced  special  temporal 

aa    occasion  however  public,  upon  the  damage  to  her. 


624  DAMAGES.  [book   V. 

property  thereon,  and  kept  and  detained  the  property  from  the 
plaintiff  for  twenty  days  ;  the  plaintiff  may  recover  damages  for 
the  trespass  to  his  property .^ 

§  15  a.  In  an  action  in  the  nature  of  an  action  for  malicious 
prosecution,  the  plaintiff  was  held  entitled  to  recover  the  hire  of 
a  slave  which  had  been  attached,  for  the  time  she  was  illegally 
detained  and  he  was  deprived  of  her  use,  the  constructive  ser- 
vices being  wholly  rendered  before  the  abolition  of  slavery.^ 

§  16.  If  the  holder  of  a  promissory  note,  after  suing  out  a  writ 
against  the  maker,  and  procuring  thereon  a  return  of  non  est, 
under  a  mistake  as  to  his  legal  rights,  sues  out  an  attachment 
against  the  indorser ;  in  an  action  for  wrongfully  and  vexatiously 
suing  out  this  latter  process,  the  proceedings  against  the  maker 
are  admissible  in  evidence  in  mitigation  of  damages.^ 

§  16  a.  The  defendant  in  an  action  for  malicious  prosecution 
cannot  prove,  in  mitigation  of  damages,  that  the  plaintiff  had 
instituted  a  similar  complaint  against  him.* 

§  17.  In  an  action  for  commencing  a  suit  against  the  plaintiff 
without  authority,  evidence  of  express  malice  on  the  part  of  the 
defendant  towards  the  plaintiff,  although  not  necessary,  is  still 
competent.^ 

§  18.  If  the  plaintiff  in  such  action  disclaims  any  damages  for 
injury  to  his  character,  the  defendant  cannot  attack  such  charac- 
ter, either  to  rebut  the  evidence  of  malice,  or  in  mitigation  of 
damages.^ 

§  19.  If  no  specific  instructions  as  to  damages  are  requested, 
it  is  a  sufiicient  instruction,  that,  in  case  they  find  for  the  plaintiff, 
the  jury  are  to  give  such  a  sum  as  will  indemnify  him  for  the 
injuries  he  has  sustained  by  the  wrongful  acts  of  the  defendant.'' 

§  20.  In  an  action  for  malicious  abuse  of  process,  compensatory 
damages  are  proper,  when  there  is  only  constructive  malice,  and 
are  such  as  to  indemnify  the  plaintiff,  including  actual  loss  or 
injury  of  property,  loss  of  time,  and  necessary  expenses,  counsel 
fees,  and  any  other  actual  loss.^  The  plaintiff  is  entitled  to 
recover  such  smart-money,  as  will  sufficiently  punish  the  defend- 

1  Whiting.r.  Johnson,  6  Gray,  246.  5  Smith  v.  Hyndman,  10  Cush.  554. 

2  Dickinson  v.  Maynard,  20  La.  An.  *>  lb. 

66.  ^  Leach  v.  Wilbur,  9  Allen,  212.      . 

3  White  V.  Wyley,  17  Ala.  167.  8  Barnett  v.  Eeed,  51  Penn.  190. 
1  Bliss  V.  Franklin,  13  Allen,  244. 


CH.    VII.]  LIBEL   AND   MALICIOUS   PROSECUTION.  625 

ant.i  "Where  a  court  found  tlie  damages  for  malicious  prosecution 
awarded  by  a  referee  to  be  excessive,  but  confirmed  his  report 
on  a  stipuktion  by  the  phiintifF  that  he  would  reduce  the  amount, 
the  judgment  was  reversed.^  The  jury  may  consider  the  pecu- 
niary ability  of  the  defendant.^ 

1  Callahan  v.  Caffarata,  39  Mis.  13G.  8  Whitfield   v.   Westbrook,    40    Miss. 

2  Cassiii  V.  Delaney,  38  N.  Y.  178,  311. 


40 


626  DAMAGES.  [book   V. 


CHAPTER  IX. 

NEGLIGENCE  ;   NUISANCE  ;    WATERCOURSES  ;    RAILROADS  ;    TOWNS. 

1.  Negligence.  11-  Railroads. 

4.  Nuisance;  Watercourse;  Patent;  Trade-        19.  Towns;  Highways, 
mark. 

§  1.  The  measure  of  damages  for  negligence  is  held  to  be  the 
actual  damage  suffered.^  Where  property,  bought  in  one  place, 
and  delivered  by  the  seller  to  be  carried  to  another  place,  is 
lost  on  the  way  by  his  negligence,  the  value  of  it.  at  the  latter 
place  is  the  measure  of  damages.^  So  where  a  prize  had  been 
offered,  for  the  best  plan  and  model  of  a  machine  for  loading 
colliers  from  barges,  and  plans  and  models  intended  for  the  com- 
petition were  to  be  sent  by  a  certain  day ;  and  the  plaintiff  sent 
a  plan  and  model  accordingly  by  railway,  but  through  negligence 
it  did  not  arrive  at  its  destination  until  after  the  appointed  day  : 
held,  it  seems,  the  proper  measure  of  damages  is  the  value  of  the 
labor  and  materials  expended  in  making  the  plan  and  model,  and 
not  the  chance  of  obtaining  the  prize,  as  the  latter  is  too  remote 
a  ground  for  damages.^  The  judges  remarked  as  follows  :  "  The 
plaintiff  had  put  his  damages  upon  a  right  principle,  for  he  said 
the  goods  were  made  for  a  special  purpose,  which  has  been  de- 
feated by  the  negligence  of  the  defendants,  and  they  have  become 
useless."  *  "  He  says  he  has  lost  the  chance  of  one  hundred 
guineas.  I  have  great  doubts  whether  that  chance  was  not  too 
contingent  and  remote  .  .  .  but  we  are  here  as  a  court  of  appeal, 
and  the  case  laid  before  us  does  not  advert  to  that  point.  .  .  .  We 
give  no  opinion  as  to  the  remoteness  of  the  damages."  ^  So  in  an 
action  against  a  boatman,  for  negligently  permitting  the  plaintiff's 

1  Goetz  V.  Atnbs,  27  Mis.  28.  *  Per  Patteson,  J.,  ib.  501. 

2  Bailey  v.  Shaw,  4  Post.  297.  ^  Per  Erie,  J.,  ib.  601. 

3  Watson  V.  Ambergate,  &c.,  3  Eng.  L. 
&  Eq.  497. 


CH.    IX.]  NEGLIGENCE.  627 

tobacco  to  be  sunk  in  the  river,  whereby  the  value  was  diminished, 
the  measure  of  damages  is  the  difference  between  the  value  of 
the  tobacco  before  and  after  its  submersion.^  So  in  an  action 
against  the  publishers  of  a  newspaper,  for  neglecting  to  insert  an 
advertisement  of  a  public  sale  of  real  estate,  for  which  they  received 
payment  in  advance  ;  the  measure  of  damages,  in  the  absence  of 
fraud,  is  the  amount  paid.  They  are  not  liable  to  speculative 
damages.^  In  an  action  for  damages  to  a  horse,  the  defendant 
is  liable,  if  the  injury  was  caused  by  his  negligence  ;  and  the 
measure  of  damages  is  the  expense  incurred  in  curing  the  horse, 
the  loss  of  his  use  while  being  cured,  and  the  difference  in  his 
value.-'^ 

§  2.  It  is  sometimes  held,  however,  that  exemplary  damages 
may  be  given  for  negligence.*  Thus,  where  the  proprietor  of  a 
newspaper  published  a  false  and  unfounded  libel  on  a  tailor, 
stating  that  he  had  been  flogged  ;  and,  although  it  was  complained 
of  at  once,  and  the  falsehood  shown,  delayed  publishing  any  con- 
tradiction until  after  action  :  these  circumstances  were  left  to  the 
jury  as  evidence  of  negligence,  and  a  verdict  sustained  for  very 
large  damages.^  So,  in  an  action  for  negligence,  the  damages 
may  be  aggravated  by  the  conduct  of  a  defendant  having  been 
reckless,  or  accompanied  by  expressions  showing  a  disregard 
for  the  safety  or  property  of  others.  Thus,  in  an  action  for  neg- 
ligence in  pulling  down  a  wall,  whereby  a  portion  of  the  bricks 
fell  upon  the  plaintiff's  stable,  broke  down  the  roof,  and  damaged 
his  horse,  the  jury  may  take  into  consideration,  as  a  ground  of 
damages,  expressions  of  the  defendant  to  the  workmen,  that 
they  should  not  take  any  care  to  guard  against  mischief  to  the 
plaintiff's  property  in  so  doing.^ 

§  3.  But  special  damages  must  be  expressly  claimed  in  the 
declaration  and  warranted  by  the  evidence ;  as  in  an  action 
against  a  common  carrier,  for  an  injury  arising  from  his  negli- 
gence. Thus  an  unmarried  woman,  receiving  an  injury  by  the 
neglect  of  a  carrier  in  whose  carriage  she  was  upset,  cannot 
recover  damages  for  impaired  prospect  of  marriage,  such  dam- 
ages not  being  specially  alleged  in  the  writ,  nor  sustained  by  the 
evidence." 

1  Stark  V.  Porter,  4  J.  J.  Marsh.  211.  5  Sniitli  v.  Harrison,  1  F.  &  F.  565. 

2  Kiseiilolir  r.  Swain,  oo  I'cnn.  107.  6  Kniblin  v.  Myers,  8  M.  II.  6G5,  Kxch. 
'  Streett  i'.  Launiier,  34  Mis.  469.  7  Hunter  v.  Stewart,  47  Maine,  419. 

*  Huntley    v.  Bacon,   15   Coun.   267. 
See  p.  605. 


628  DAMAGES.  [book  V. 

§  3  a.  It  is  held  in  a  late  English  case,  that  one  who  for  his 
own  purposes  brings,  collects,  and  keeps  on  his  land  any  thing 
likely  to  do  mischief  if  it  escapes,  must  keep  it  at  his  peril,  and, 
without  proof  of  negligence,  is  prima  facie  liable  for  all  damage 
naturally  resulting  from  its  escape.^ 

§  3  6.  In  a  suit  to  abate  a  nuisance,  caused  by  digging  a  ditch 
on  the  plaintiff's  land,  and  for  damages,  the  court  cannot  prop- 
erly order  an  abatement,  and  a  sum  sufficient  to  pay  for  the  filling 
of  the  ditch,  &c.  The  case  is  not  one  for  prospective  damages, 
and  the  plaintiff  cannot  recover  beyond  the  injury  sustained.^ 

§  4.  The  law  implies  damage  from  the  flooding  of  the  ground 
of  another,  though  it  be  in  the  least  possible  degree,  and  without 
immediate  actual  prejudice.  Hence  a  mere  reversioner  may 
maintain  an  action  therefor.  "  In  contemplation  of  law,  the  rent 
issues  out  of  the  land  ;  and  whatever  impairs  the  productiveness 
of  it,  decreases  the  landlord's  security  ;  but  compensation  recov- 
ered by  the  tenant  would  be  a  poor  substitute  for  the  means  of 
payment  derived  from  an  unimpaired  enjoyment  of  the  premises. 
Besides,  the  market  value  of  the  reversion  would  be  greatly  les- 
sened by  an  apparent  injury  which  would  permanently  affect  the 
property,  or  saddle  the  purchaser  with  a  lawsuit."  ^ 

§  5.  It  has  been  sometimes  held,  in  an  action  for  obstructing  a 
watercourse,  that  the  jury  must  find  the  full  value  of  the  land 
overflowed  in  damages.*  And  where  the  damages  of  overflowing 
land  were  not  equal  to  what  was  sworn  to  by  some  of  the  wit- 
nesses, the  court  refused  to  set  aside  the  verdict,  though  they 
seemed  high.^ 

§  6.  In  trespass  for  destroying  a  mill-dam,  &c.,  the  plaintiff 
may  give  evidence  of  damage  sustained  by  the  stoppage  of  the 
mills.  The  court  remark:  "  In  an  action  of  trespass,  for  destroy- 
ing a  mill-dam  (not  merely  a  dam  which  may  be  for  other  pur- 
poses), the  stoppage  of  the  mills  supplying  its  means  with 
water-power  seems  to  fall  within  the  description  of  such  a  damage 
as  naturally  or  necessarily  results  from  the  act.  .  .  .  These  words 
have  received  a  large  construction,  so  as  to  embrace  consequential 

1  Fletcher  v.  Rvlands,  Law  Eep.  1  Ex.  Gibson,  C.  J.,  ib.  14.  See  Miller  v.  Lau- 
263  ;  Aran.  Law  Kev.,  Jan.  1867,  p.  294.       bach,  47  Penn.  154. 

2  De   Costa  v.  Massachusetts,  &c.,  17         *  4  Dall.  147. 

Cal.  613.  5  Winans  v.  Brookfield,  2  Smith,  847. 

3  llipka  V.  Sergeant,  7  W.  &  S.  9  ;  per 


CH.  IX.]  negligence;  nuisance,  etc.  629 

injuries  not  specifically  mentioned  in  the  declaration,  but  ordi- 
narily flowing  from  the  act  complained  of.  Under  the  .  .  .  alia 
e/iormirt,  damages  naturally  arising  may  be  given  in  evidence  .  .  . 
though  not  stated."  ^ 

§  6  a.  On  a  petition  to  recover  damages  caused  by  the  erection 
of  a  mill,  if  the  water  was  ponded  back  by  the  defendant's  dam 
on  the  plaintiff's  wheel,  but  produced  no  substantial  injury,  the 
plaintiff  is  entitled  to  nominal  damages.^ 

§  7.  Where  one  riparian  proprietor  had,  by  means  of  a  water- 
wheel,  raised  and  diverted  from  the  premises  of  another  about 
one-fortieth  part  of  the  volume  of  a  stream;  held,  that  it  was  for 
the  jury  to  consider  whether  he  had  thereby  inflicted  on  the  other 
any  sensible  or  material  injury.^ 

§  7  a.  The  owner  of  land,  through  which  an  ancient  water- 
course runs,  may  maintain  an  action  for  nominal  damages  against 
one  who  diverts  it  above  him  so  as  materially  to  diminish  the 
flow  of  water  by  his  land,  without  proof  of  actual  injury.'* 

§  8.  In  the  assessment  of  damages  caused  by  diversion  of  a 
river,  the  tenant  of  a  mill  will  be  entitled  to  damages  for  his  loss 
during  the  unexpired  term  of  his  lease.'^ 

§  9.  The  owner  of  a  mill-dam  cannot,  in  an  action  against  the 
owner  of  a  mill  above,  for  forcibly  taking  down  more  of  the  plain- 
tiff's dam  than  was  necessary  to  remove  the  defendant's  mill, 
recover,  as  part  of  his  damages,  any  thing  paid  for  counsel  fees  or 
to  engineers  for  making  surve^ys.^ 

§  9  a.  A  conveyed  a  mill  to  B,  and  covenanted  with  him  to  keep 
one-half  of  the  dam  in  repair.  The  dam  was  afterwards  carried 
away  by  a  flood,  and  B  dvdy  requested  A  to  aid  him  in  rebuilding 
it.  A  refused,  and  B  repaired  it  at  his  own  expense.  Held,  B 
could  not  recover  damages  for  loss  of  the  profits  of  the  mill  by 
reason  of  the  delay  caused  by  A's  refusal,  but  only  for  one-half  of 
the  expense  of  repairing  it.  jNIr.  Justice  Dewey  remarks  :  "  It 
being  the  duty  of  the  plaintiff  to  make  one-half  of  the  repairs, 
and  it  being  a  right  which  he  might  at  once  exercise,  to  proceed 
to  make  the  whole  repairs,  after  neglect  and  refusal  of  the  defend- 
ant, upon  reasonable  notice,  to  aid  in  the  repairs ;  if  the  plaintiff 

1  Spipclmnyer  v.  Walter,  3  W.  &  S.  *  Stowell  v.  Lincoln,  11  Grny.  434. 

540 ;  per  iSer^'eant,  J.,  ib.  542.  5  Matter  of  Water  Commissioners,  4 

■■2  Little  V.  ytanhack,  (53  N.  C.  285.  Edw.  Cli.  545. 
3  Korbury  v.  Kitcliin,  3  F.  &  F.  292.  «  Day  v.  Wood  worth,  13  How.  3G3. 


630  DAMAGES.  [book  V. 

delayed  to  exercise  that  right,  and  thereby  sustained  a  loss,  it  is 
one  which  he  alone  must  bear."  ^ 

§  9  6.  In  an  action  for  interfering  with  the  regularity  of  the 
flow  of  water  into  a  ditch,  proof  that  the  plaintiiF  has  thereby  lost 
his  customers,  is  competent.^ 

§  9  c.  In  an  action  for  overflowing  lands,  no  recovery  can  be 
had  for  injuries  accrued  after  the  commencement  of  suit;  but 
evidence  of  such  injuries  is  admissible  as  showing  the  conse- 
quences of  the  diversion,  under  similar  circumstances,  before  the 
suit.^ 

§  9  c?.  In  an  action  for  injuries  done  premises  by  water,  in 
consequence  of  diverting  a  stream  from  its  channel,  in  building 
a  culvert,  the  rule  of  damages  has  no  reference  to  the  cost  of 
removing  a  bar  of  gravel  carried  upon  the  premises  by  a  flood. 
The  measure  of  damages  is  the  depreciation  in  value  of  the 
premises  occasioned  by  the  defendants'  acts.  But  where  such 
deposit  is  comparatively  extensive,  and  the  cost  of  removing  it 
would  probably  equal,  if  not  greatly  exceed,  the  value  of  the  soil 
covered  by  it ;  the  rule  contemplates,  that  the  deposit  is  to  remain ; 
and  one  item  of  damage  is  the  consequent  depreciation  in  the 
land.  And  the  owner  of  the  land  is  under  no  obligation  to  remove 
the  gravel  by  reason  of  his  having  received  compensation  for  his 
damages  from  the  wrong-doer ;  nor  does  he  incur  any  peril,  in  a 
legal  sense,  by  suffering  it  to  remain.* 

§  9  e.  The  damages,  accruing  after  a  complaint  for  flowage  is 
filed,  must  be  assessed  in  yearly  sums,  reckoning  from  the  date 
of  filing  the  cotr.plaint ;  and  the  judgment  should  embrace  all  the 
yearly  payments  that  have  become  due  when  it  is  rendered.^ 

§  10.  In  Maine,  the  damages  for  three  years  may  be  assessed 
in  one  aggregate  sum.  Execution  may  issue  for  damages  to  the 
time  of  the  verdict ;  and,  when  the  case  has  been  referred,  to 
the  time  of  the  award.^ 

§  10  a.  To  indemnify  a  patentee  in  damages,  the  jury  may 
allow  actual  costs  in  suits  relating  to  the  patent,  and  also  reason- 
able counsel  fees ;  and  the  Circuit  Court,  under  the  act  of  Con- 
gress, will  award  treble  what  is  found  by  the  jury  as  damages,  if 

1  Thomson  v.  Shattuck,  2  Met.  615,  <  Easterbrook  v.  Erie,  51  Barb.  94. 
619.     See  p.  608.  ^  Billings  v.  Berry,  50  Maine,  31. 

2  Natoma  v.  McCoy,  23  Cal.  490.  6  Bradstreet  v.  Erskine,  60  Maine,  407. 

3  PoUy  V.  McCaU,  1  Ala.  (S.  C.)  246. 


CH.    IX.]  NUISANCE  ;    PATENT,    ETC.  631 

deemed  proper  to  protect  useful  inventors  from  combination  and 
ruin.i 

§  10  h.  Under  a  reference  to  a  master,  to  ascertain  and  report 
the  amount  of  profits  realized,  or  which  might  with  due  diligence 
have  been  realized,  by  a  defendant  to  a  bill  in  equity,  to  restrain 
the  infringement  of  a  patent,  for  work  done  by  mechanics  similar 
to  the  plaintiff's;  the  plaintiff  is  entitled  only  to  the  actual  profits 
realized  by  the  defendant,  and  not  to  any  greater  amount  of 
damages  sustained  by  the  plaintiff.^ 

§  10  c.  In  a  suit  to  recover  damages  for  infringement  of  a 
patent,  the  plaintiffs  are  entitled  to  recover  all  the  actual  profits 
which  the  defendant  has  made  by  the  use  of  the  principle  of  the 
plaintiff's  combination,  the  law  presuming,  that,  if  the  defendant 
had  not  put  his  machines  into  the  market,  the  demand  would 
have  been  for  the  plaintiff's,  and  he  would  have  received  the 
profits.  The  interest  on  the  capital,  the  risk  of  bad  debts,  and 
the  expenses  of  selling  the  machines,  are  all  to  be  taken  into 
account.  Vindictive  or  exemplary  damages  are  not  to  be 
allowed.^ 

§  10  d.  In  a  very  recent  English  case,  where  a  bill  in  equity 
had  been  filed  to  restrain  the  infringement  of  a  trade-mark,  and  a 
decree  obtained  for  an  injunction  ;  the  court  offered  a  decree  for 
an  account  of  profits,  but  the  plaintiffs  elected  an  inquiry  as  to 
damages.  Held,  the  law  would  not  presume  that  they  would  have 
sold  the  amount  of  goods  sold  by  the  defendant,  but  the  burden 
of  proof  was  on  them  to  show  special  damage  by  loss  of  custc-m 
or  otherwise.  The  remarks  of  the  court  have  an  important  bear- 
ing upon  the  subject  to  which  in  various  connections  we  have  so 
often  referred,  —  remote  or  contingent  damages  :  "  How  can  the 
court  assume  that  the  persons  who  bought  what  the  plaintiffs 
aver  were  inferior  articles  at  an  inferior  price,  would  necessarily, 
if  they  had  not  done  so,  have  bought  the  superior  articles  at  the 
higher  price,  .  .  .  and  that  in  the  absence  of  any  evidence  that 
any  of  the  purchasers  had  at  any  time  been  customers  of  the 
plaintiffs.  But  even  supposing  that  such  an  assumption  were 
possible,  why  is  the  court  to  assume  that,  even  if  the  purchasers 
would  have  bought  the  higher-priced  article,  they  would  have 

1  Allen  V.  Blunt,  2  AV.  &  M.  121.     See  »  Wilbur  v.   Beeclier,   2    Blatch.    Ct. 

Earle  v.  Sawyer,  4  Mas.  1.  132;  Hall  r.  Wiles,  ib.  VM  ;  Pitts  v.  Hall, 

^  Livingston  v.  Woodworth,  15  How.  ib.  22'j ;  McCormick  v.  Seymour,  ib.  240. 
546, 


632  DAMAGES.  [book   V. 

bought  it  of  the  plaintiffs  ?  There  were  or  there  may  have  been 
persons  licensed  by  the  plaintiffs  to  use  their  trade-mark  and  to 
sell  goods  manufactured  by  their  process,  or  there  may  have  been, 
and  doubtless  were,  persons  who  had  purchased  from  the  plain- 
tiffs with  a  view  of  selling  again.  How  can  the  court  assume 
that  the  supposed  purchasers  would  have  .  .  .  purchased  direct 
from  the  plaintiffs."  ^ 

§  11.  The  measure  of  damages,  in  actions  against  railroads,  of 
course  depends  upon  the  nature  of  the  particular  injury  com- 
plained of.  In  case  of  personal  injury,  much  discretion  is  left  to 
the  judge  or  jury.^     So  in  case  of  negligence.^ 

§  12.  A  person  ejected  from  the  cars  three  or  four  miles  from  a 
station,  but  without  any  aggravating  circumstances,  he  having 
refused  to  pay  his  fare,  and  offered  without  any  explanation  a 
ticket  which  was  void  by  the  usages  of  the  road,  and  his  inten- 
tion being  to  ride  from  one  station  to  another,  is  entitled  to  only 
nominal  damages.'^ 

§  13.  But  a  passenger,  expelled  from  a  train  without  fault  on 
bis  part,  may  recover  more  than  nominal  damages,  though  no 
pecuniary  loss  or  actual  injury  to  his  person  is  proved.  In  an 
action  under  the  (HI.)  Statute  against  a  railroad,  for  wrongful  ex- 
pulsion of  a  passenger  who  had  been  unable  to  procure  a  ticket 
before  entering  the  car,  although  the  conductor  acted  in  good 
faith,  and  without  violence  or  insult,  and  no  actual  damage  was 
sustained ;  the  jury,  in  estimating  the  damages,  may  consider  not 
only  the  annoyance,  delay,  and  risk  to  the  passenger,  but  also  the 
indignity  in  the  mere  fact  of  expulsion.^  So  in  an  action  by  a 
passenger  against  a  railroad  company,  for  carrying  him  beyond  his 
station,  the  verdict  was  for  $4500  damages.  The  court  thought 
the  verdict  very  large,  but  held,  that,  as  the  action  sounded  in 
tort,  the  jury  could  give  punitive  damages,  and  so  refused  to  set 
aside  the  verdict.^  So  it  is  held  that  the  jury  may  in  their  dis- 
cretion give  exemplary  damages,  where  a  personal  injury  has 

1  Leather,  &c.  v.  Hirschfield  (Eng.),  188.  But  see  Sanford  v.  the  Eighth,  &c., 
Law  Rep.,  Eq.  Series,  Feb.  1867,  pp.  298-    23  N.  Y.  (9  Smith)  343. 

301,  5  Chicago  v.  Flagg,  43  111.  364.    See  p. 

2  Choppin  V.  New  Orleans,  17  La.  An.    606. 

19.  6  New  Orleans,  &c.  v.  Hirst,  36  Miss. 

8  Frank  v.  New  Orleans,  20  La.  An.  25.     660. 
*  Terre  Haute,  &c.  v.  Vanatta,  21  111. 


CH.    IX.]  RAILROADS.  633 

been  caused  by  the  gross  carelessness  of  a  railroad  in  the  man- 
agement of  its  trains.^ 

§  14.  It  has  been  held  that,  in  an  action  brought  against  a  rail- 
road for  a  persona]  injury  occasioned  by  their  negligence,  dam- 
ages may  be  recovered  for  loss  of  business.^  So,  in  an  action 
against  a  railroad  for  injury  done  to  a  child  of  the  plaintift",  the 
damages  may  include  all  such  prospective  loss  as  must  necessarily 
result  from  the  injury.^  But  a  verdict  for  damages  occasioned  by 
a  railroad  collision,  of  more  than  twice  the  amount  limited  by 
law  if  the  accident  had  occasioned  the  death  of  the  plaintiff,  will 
be  set  aside,  on  motion  for  a  new  trial.  As  where,  in  a  case 
said  to  involve  no  peculiar  aggravation  or  gross  negligence, 
although  the  plaintiff  was  crippled  for  life,  a  verdict  was  given  for 
eleven  thousand  dollars.  (In  this  instance,  adopting  a  practice 
not  unusual  in  cases  of  contract,  but  rarely  applied  to  torts,  the 
motion  for  a  new  trial  was  denied,  if  within  twenty  days  a  stipu- 
lation is  given  to  reduce  the  verdict  to  five  thousand  dollars.'*) 
So  the  measure  of  damages,  in  an  action  against  a  railroad  for 
negligence,  whereby  certain  slaves  of  the  plaintiff  were  permitted 
to  escape,  is  not  the  full  value  of  the  property.  It  lies  in  the 
discretion  of  the  jury,  after  a  consideration  of  the  circumstances.^ 
And  in  a  case,  afterwards  referred  to  by  the  same  court  as  being 
very  carefully  considered,  it  was  held,  that  a  female  teacher 
injured,  when  travelling  on  the  highway,  by  the  engine  of  a  rail- 
road, cannot  claim  damages,  with  reference  to  iier  occupation  and 
means  of  earning  support,  unless  specially  alleged  in  the  writ. 
The  court  remark  :  "  Under  the  (Mass.)  Practice  Act,  St.  1852, 
c.  312,  a  general  allegation  of  damages  at  the  end  of  the  decla- 
ration will  not  entitle  a  party  in  an  action  of  tort  to  prove  special 
damages;  that  is,  such  damages  as  are  not  implied  by  law,  be- 
cause they  do  not  necessarily  arise  from  the  act  complained  of. 
Tiie  rule  of  the  common  law,  which  requires  a  plaintilf,  for  the  pur- 
pose of  guarding  against  surprise,  ...  to  set  out  any  particular 
damage,  .  .  .  remains  unchanged.  There  is  no  specific  provi- 
sion .  .  .  which  authorizes  any  alteration.  .  .  .  On  the  contrary, 
it  is  expressly  provided  in  §  6,  that  the  rules  of  evidence  and  the 
measure  of  damages  shall  remain  unchanged,  *  except  so  far  as 

1  Hopkins  v.  Atlantic,  &c.,  3G  N.  H.  9.  *  Collins  v.  Albany,  &c.,  12  Barb.  4^2. 

2  Kinney  v.  Crocker,  18  Wis.  74.  5  O'Neall  v.  South,  &c.,  U  Kicii.  4G5. 
a  Drew  V.  Sixth,  &c.,   2(3   N.    Y.    (12 

Smith)  4'J. 


634  DAMAGES.  [book   V. 

.  .  .  herein  specially  provided  for.'  Besides,  to  the  forms  of  dec- 
larations .  .  ,  there  is  this  significant  note :  '  The  ad  damnum 
is  a  sufficient  allegation  of  damage  in  all  cases  in  which  special 
damages  are  not  claimed.'  .  .  .  The  evidence  offered  by  the 
plaintiff  to  show  her  education  and  learning,  and  that  she  was  a 
school-teacher  .  .  .  did  not  tend  to  show  an  injury  falling  within 
the  class  of  general  damages,  .  .  .  such  damages  as  any  other 
person  .  .  .  might,  under  the  same  circumstances,  have  sustained 
from  the  acts  set  out.  .  .  .  This  part  of  the  plaintiff's  claim 
could  be  founded  only  upon  a  peculiar  loss,  ...  by  reason  of  the 
interruption  to  her  occupation."  (The  learned  judge  also  sug- 
gested it  as  "  a  more  difficult  question  whether  the  evidence 
would  be  admissible  under  any  form  of  declaration."  i) 

§  15,  In  an  action  against  a  railway  company  for  carelessly 
letting  sparks  fly  from  their  engine,  so  as  to  set  the  herbage  and 
pasturage  on  fire,  the  compensation  should  be  measured  as  in  the 
case  of  an  unwilling  vendor? 

§  16.  A  judgment  for  the  plaintiff  against  a  railroad,  for  the 
destruction  of  a  building  by  fire  communicated  from  an  engine, 
is  a  bar  to  a  subsequent  action  for  the  destruction  of  other  build- 
ings by  fire  communicated  from  the  building  first  destroyed, 
although  the  subsequent  action  is  brought  and  prosecuted  for  the 
benefit  of  an  insurance  company  which  has  paid  to  the  plaintiff 
the  amount  of  a  policy  thereupon.  "  The  loss  of  the  shop  and 
of  the  dwelling-house  and  shed  were  distinct  items  or  grounds  of 
damage,  but  they  were  both  the  result  of  a  single  and  indivisible 
act.  The  plaintiff  therefore  does  not  show  any  right  to  maintain 
another  action  to  recover  additional  damages  merely  by  showing 
that,  in  consequence  of  his  omission  to  produce  upon  the  trial  all 
the  evidence  which  was  admissible,  ...  he  failed  to  obtain  the 
full  amount  of  compensation  to  which  in  that  event  he  might 
have  been  entitled.  ...  To  protect  their  interest,  the  insurance 
company  should  have  seasonably  intervened  and  supplied  .  .  . 
the  evidence  which  would  have  shown  that  the  plaintiff  ought  to 
recover  .  .  .  for  the  burning  of  the  dwelling-house  and  shed."  ^ 

§  17.  With  reference  to  another  class  of  actions  against  rail- 


1  Baldwin   v.   Western,   &c..  4   Gray,         3  Trask  v.  Hartford,  &c.,  2  Allen,  331 ; 
333;  per  Bigelow,  J.,  ib.  835.  per  Merrick,  J.,  ib.  332. 

-  Gibson  v.  S.  E.  Railway,  &c.,  1  F.  & 
F.  23. 


CH.    IX.]  RAILROADS.  635 

roads  ;  land  damages  (a)  cannot  be  recovered  of  a  railroad  for 
neglect  to  remove  the  stones  thrown  upon  land  by  blasting,  while 
grading  the  road,  though  damage  by  the  blasting  itself  may  be. 
The  duty  of  the  road  was  to  remove  the  stones  in  reasonable 
time,  and  the  jury  were  bound  to  presume  that  they  would  do  it. 
"  They  can  only  embrace,  in  their  estimate,  injuries  caused  by  the 
acts  of  the  company  which  are  authorized  by  their  charter." 
The  remedy  for  the  neglect  in  question  is  an  action  at  common 
law.^ 

§  18.  In  case  of  a  lateral  railroad,  in  Pennsylvania,  the  measure 
of  land  damages  is  the  injury  done  to  the  tract  as  a  whole,  or  the 
difference  between  its  value  at  the  time  of  the  entry  and  its  value 
after  completion  of  the  road.^ 

§  18  a.  In  a  very  recent  English  case,  it  is  held  that  the  owner 
of  a  house,  whose  lands  have  not  been  taken  by  a  railroad  com- 
pany, cannot,  under  the  Lands  Clauses  Consolidation  Act,  or  the 
Railway  Clauses  Consolidation  Act,  of  1845,  recover  damages  for 
depreciation  of  the  house  caused  by  the  vibration,  smoke,  and 
noise  incident  to  the  ordinary  use  of  a  railroad.  The  case  was 
very  elaborately  argued,  and  numerous  decisions  were  cited. 
The  remarks  of  one  of  the  judges,  who  gave  their  opinions  at 
length,  show  the  grounds  of  adjudication,  and  illustrate  the  gen- 
eral subject.  "  The  claim  to  compensation  is  subject  to  two 
important  limitations.  .  .  .  The  land  must  be  injuriously  affected 
in  this  sense  .  .  .  that  the  injury  must  be  one  for  which  an  action 
would  have  lain,  had  the  act  of  the  company  not  been  authorized 
by  the  statute.  .  .  .  The  land  must  be  '  injuriously  affected  by 
the  execution  of  the  works,'  which  is  the  expression  used  in  one 
of  the  acts.  .  .  .  The  words  ...  in  their  ordinary  and  proper 
sense,  mean  nothing  more  than  the  construction  of  the  railway. 
.  .  .  The  6th  section  of"  the  other  act  "  is  preceded  by  the  fol- 
lowing heading :  '  And  with  respect  to  the  construction  of  the 
railway  and  the  works  connected  therewith.'  Therefore,  one 
would  suppose,  the  clauses  which  are  about  to  follow  that  head- 

1  Wliitehouse  v.  Androscoggin,  &c.,  5         -  Brown  i*.  Corey,  43  Penn.  495. 
Maine,  '208. 

(«)  In  Wisconsin,  a  railroad  (or  persons  tendering    the    amount   wlicn    so    ascer- 

acting  under  it)  entering  \\\w\\  liiml   and  taincd),  is  liable  in  trespass  for  tlie  actual 

perniant'iuJy  occupying  and  appropriating  damages,    tliougli    tiie     laiKlowucr    lias 

it  witiiout   compensation   (or  liaving    its  taken  no  steps  to  iiave  the  value  assessed. 

value  ascertained  as  provided  by  law,  and  Loop  i;.  Chamberlain,  20  Wis.  136. 


636  DAMAGES.  [book   V. 

ing  would  be  clauses  relating  to  the  construction  of  the  railway, 
and  would  have  no  reference  to  it  afterwards.  Section  6th  then 
goes  on  to  enact  .  .  .  '  The  company  shall  make  to  the  owners 
and  occupiers  of,  and  all  other  parties  interested  in,  any  lands, 
taken  or  used  for  the  purpose  of  the  railway,  or  injuriously  affected 
by  the  construction  thereof,  full  compensation  for  the  value  of  the 
lands  so  taken  or  used,  and  for  all  damage  sustained  by  such 
owners,  occupiers,  and  other  parties,  by  reason  of  the  exercise, 
as  regards  such  lands,  of  the  powers  by  this  or  the  special  act, 
or  any  act  incorporated  therewith,  vested  in  the  company.'  .  .  . 
The  legislature  uses  the  words  'by  the  construction  thereof  as 
equivalent  to,  or  synonymous  with,  '  by  the  exercise  of  the  pow- 
ers of  the  act.'  .  .  .  What  was  intended  was  no  more  than  was 
intended  by  the  form  in  the  G8th  section  of  the  Lands  Clauses 
Consolidation  Act,  namely,  the  exercise  of  the  power  given  to 
execute  the  works,  that  is,  in  the  present  case,  to  construct  the 
railway  ;  so  that  the  compensation  must  be  limited  to  such  dam- 
age as  was  occasioned  to  the  property  by  reason  of  the  construc- 
tion of  the  railway.  All  the  damage  which  is  caused  to  the 
claimant  was  damage  occasioned  ...  by  the  use  of  the  railway 
.  .  .  legalized  by  the  act  of  Parliament."^ 

§  19.  The  damages  recoverable  against  a  town  in  Massachusetts 
under  the  Rev.  Sts.,  c.  25,  §  22,  are  for  an  injury  to  the  person 
or  property  only,  and  not  merely  on  account  of  a  risk  or  peril 
which  causes  fright  and  mental  suffering.  But,  where  an  actual 
injury  to  the  person  is  sustained,  however  small,  which  causes 
mental  suffering,  that  suffering  is  a  part  of  the  injury  for  which 
the  town  is  liable.^ 

§  20.  In  an  action  against  a  city  for  personal  injury  caused  to 
the  plaintiff,  a  practising  physician,  by  its  neglect  to  repair  a 
bridge ;  the  plaintiff  may  show  the  nature  and  extent  of  his  busi- 
ness, and  the  loss  arising  from  his  being  disabled  by  the  injury 
to  pursue  it,  as  affecting  the  amount  of  damages.^ 

§  21.  In  an  action  for  injury  caused  by  a  defective  highway, 
the  jury  cannot  add  interest  to  the  damages.^ 

1  Brand  v.  Hammersmith,  &c.,  (Eng.)  3  Nebraska,  &c.  v.  Campbell,  2  Black, 
Law  Rep.  Com.  L.,  Feb.  1866,  p.  130 ;  per    590. 

Lush.  J.,  ib.  146.  4  Sargent  v.  Hampden,  38  Maine,  581. 

2  Canning  v.  Williamstown,   1  Cush. 
451. 


CH.   IX.]  RAILROADS,   TOWNS.  637 

§  22.  It  is  lield,  by  a  late  case  in  Kentucky,  that,  in  condemning 
land  for  a  bridge,  damages  cannot  be  allowed  fi)r  injury  to  a 
ferry,  but  only  the  value  of  the  land  taken,  and  incidental  or  col- 
lateral injury  to  other  land.^ 

§  23.  In  estimating  damages  to  property  by  act  of  a  city  on 
the  highway,  the  cost  of  restoring  a  building  to  a  condition  as 
good  as  before  should  be  considered,  and  also  the  loss  of  the  use 
of  the  house.2 

§  24.  For  the  location  and  opening  of  a  highway  through  land, 
the  measure  of  damages  is  the  difference  between  its  market  value 
at  the  time  with  and  without  the  highway .^ 

^  Riclimoml  v.  Ttopers,  1  Duv.  135.  8  Sedener  v.  Essex,  22  Ind.  201. 

2  Freeland  v.  Muscatine,  9  Iowa,  4(31. 


638 


DAMAGES. 


[book  v. 


CHAPTER   X. 


DAMAGES   IN   ACTIONS   AGAINST   OFFICERS. 


1.  General  rule  of  damajres,  as  affected  by 
the  motives,  (S:c.,  of  the  defendant. 
S.  For  failing  to  return  process. 
10.  For  false  return. 

14.  For  wrongful  taking  of  property,  —  ac- 
tion by  the  defendant  in  the  process. 
16.  For  loss  of  property  taken. 
18.  Action  b}'  one  not  party  to  the  process 
for    seizure    of  his  property;    value   of  the 


property;  additional  damages;  motives  of 
the  officer. 

24.  Damages  for  neglect  to  levy,  &c. 

29.  Mitigation  of  damages;  application  of 
proceeds  to  the  plaintiff's  benefit,  &c. 

31.  Damages  for  neglect  to  arrest. 

32.  For  escape;  taking  insufficient  bail, 
&c. 

42.  Miscellaneous  cases. 


§  1.  No  class  of  cases  has  given  rise  to  more  questions,  relating 
to  damages,  than  those  brought  against  officers  (a)  for  neglect  or 
misfeasance  in  the  service  of  process  intrusted  to  them,  whether 
by  seizure  of  property,  or  by  arrest  and  commitment. 

§  2.  For  wanton  violation  or  neglect  of  duty,  officers  are  liable 
to  a  very  rigid  accountability.  (&)     Thus,  in  a  very  late  case,  it 


(rt)  In  an  action  before  a  justice,  under 
the  (Iowa)  Code  of  1851,  §  509,  against  a 
comity  treasurer  for  the  wrongful  sale  of 
land  for  taxes  ;  the  measure  of  damages  is 
the  sum  paid  to  him  by  the  plaintiff,  with 
interest.  The  measure  of  damages  fixed 
by  the  Act  of  1858,  c.  152,  §  63,  is  not 
applicable  in  cases  of  sale  made  before 
that  act  took  effect.  Costs  incurred  in 
foreclosing  the  tax-title  are  not  recover- 
able in  an  action  under  tliis  act.  Traer 
V.  Filkins,  10  Iowa,  563. 

In  an  action  against  public  officers  for 
injury  done  in  the  construction  of  a  road, 
by  building  a  causeway  instead  of  a 
bridge,  it  is  competent  for  one  of  the  de- 
fendants to  prove,  as  showing  the  absence 
of  malice,  that  before  commencement  of 
the  work  he  had  received  a  message  from 
the  supervisor  of  the  adjoining  township, 
a  codefendant,  that  he  would  not  join  in 
building  a  bridge  because  the  people  of 
his  township  were  opposed  to  it.  Yealy 
V.  Fink,  43  Penn.  212. 

A  maglsti-ate,  who  has  rendered  judg- 
ment for  the  plaintiff"  in  an  action  pending 
before  him,  and,  pn  request  for  an  execu- 
tion, has  issued  one  which  is  invalid  on  its 
face,  is  liable  for  such  damages  as  are  the 


natural,  necessary,  and  proximate  conse- 
quences of  his  wrongful  act ;  but  not  for 
tlie  costs  of  levying  the  execution,  or 
losses  to  which  the  plaintiff  has  been  sub- 
jected by  reason  of  attempting  to  enforce 
it.  And  he  may  show,  in  mitigation, 
that  the  condition  and  circumstances  of 
the  judgment-debtor  were  such,  that 
nothing  could  have  been  collected  upon 
a  valid  execution.  Noxon  v.  Hill,  2  Allen, 
215. 

In  an  action  by  a  land-owner  against  a 
town  supervisor,  for  refusing  to  lay  before 
the  board  of  supervisors  an  assessment  of 
damages  awarded  to  him  on  account  of 
the  laying  out  of  a  road  through  his  land, 
the  measure  of  damages  is  the  amount  of 
the  assessment,  interest,  and  costs.  Clark 
V.  Miller,  47  Barb.  38. 

{b)  The  defendants,  bailiffs,  in  serving 
an  execution,  found  money  secreted  in  a 
wall,  and  took  it  away  and  embezzled  it, 
and  did  great  spoil  to  the  debtor's  goods. 
Held,  they  were  liable,  not  only  for  the 
money,  but  for  any  other  damage  to 
which  the  plaintiff  would  make  oath. 
Childrens  v.  Sarby,  1  Vern.  207.  See  E. 
Ind.  Co.  V.  Evans,  ib.  808. 


CH.    X.]  DAMAGES   IN   ACTIONS   AGAINST   OFFICERS.  639 

was  remarked  by  the  court  in  Pennsylvania  :  "  Nothing  could  be 
more  irregular  or  unwarrantable  than  the  sheriff's  conduct. 
Indemnified  by  the  plaintiff,  it  was  his  duty  to  sell  the  goods 
under  the  fi.  fa.  If  he  found  them  claimed  by  adverse  parties, 
there  was  the  Interpleader  Act  for  his  guidance  and  protection. 
To  lie  still  until  the  last  days  of  the  life  of  the  vend.  exjD.,  and 
then  to  take  a  bond  from  strangers  to  the  writ,  to  protect  him 
against  the  consequences  of  his  official  delinquency,  was  a  gross 
breach  of  duty,  which  he  ought  to  have  been  ashamed  to  offer  as 
a  legal  return  to  the  writ  of  vend,  exp."  ^  So,  in  an  earlier  case, 
it  is  said :  "  It  is  to  be  regretted  that  officers,  having  a  plain  path 
before  them,  will  not  pursue  it.  If  they  deviate  from  it,  it  must 
be  at  their  own  peril  ;  and  they  cannot  protect  themselves,  against 
the  damages  arising  from  a  breach  of  official  duty,  by  any  col- 
lateral stipulation  for  indemnity."  ^ 

§  3.  But,  on  the  other  hand,  it  was  said,  in  an  early  case  in 
Massachusetts  :  "  It  is  peculiarly  the  right  of  the  jury  to  assess 
the  damages,  and  in  this  they  are  not  restricted  to  any  precise 
sum.  They  may  give  more  than  the  former  judgment,  if  they 
believe  that  the  wrong  was  wilful  on  the  part  of  the  officer ;  for 
they  may,  and  sometimes  do,  add  to  the  amount  of  the  first  judg- 
ment the  expenses  and  costs  not  taxable,  in  actions  against  the 
officers  by  way  of  damages.  And  as  they  may  exceed,  so  thej 
may  fall  short  of  the  former  judgment ;  the  great  object  of  the 
action  being  to  restore  the  plaintiff  to  what  he  has  lost  by  means 
of  the  misdoings  of  the  officer.  If  it  should  be  apparent  to  the 
jury  that  the  wrong  on  the  part  of  the  officer  was  not  the  result 
of  a  design  to  injure,  and  also  that  by  the  wrongful  act  of  the 
officer  the  plaintiff  is  put  in  no  worse  situation  than  he  would  have 
been  in,  had  the  officer  done  his  duty ;  the  jury  would  be  at 
liberty,  indeed  it  would  be  their  duty,  to  see  that  a  humane  or 
mistaken  officer  is  not  made  to  pay  more  than  the  party  has  really 
Buffered  by  his  wrong."  ^  And  in  a  much  later  case  it  is  held, 
that  an  officer,  who  is  not  guilty  of  gross  and  wilful  neglect  in  not 
serving  process,  but  acts  in  good  faith,  though  erroneously,  is 
only  liable  for  the  actual  damage.^ 

1  Per     Woodward,    J.,    Connelly     v.         *  Blodgett  v.  Brattlehoro',  30  Verm. 

Walker,  45  Penn.  450.  579.     See  Hodsdon  v.  Wilkins,  7  Greenl. 

-  Per  Parsons,  C.  J.,  Denny  i».  Lincoln,  113;    Ackley    v.   Cliester,  5    Day,  221; 

6  Mass.  38U.  Potts  v.   Commonwealth,  4  J.  J.  Marsh 

3  Per  Parker,  J.,  Weld  v.  Bartlett,  10  202;  Commonwealth  i\  Bradley,  ib.  209. 
Mass.  473. 


640  DAMAGES.  [book  V. 

§  4.  In  other  late  cases  the  distinctions  are  made,  that  an  officer 
of  the  law,  committing  a  raah'cious  trespass,  under  color  of  process, 
is  liable  in  vindictive  or  exemplary  damages.  Otherwise,  though 
there  be  malice  on  the  part  of  the  party  putting  an  execution  into 
the  hands  of  an  officer,  if  the  acts  of  the  officer  be  honest  and 
bo?id  fide}  Damages  for  an  illegal  seizure,  made  in  good  faith 
and  upon  reasonable  cause,  and  without  circumstances  of  aggra- 
vation, cannot  exceed  compensation  or  the  value  of  the  property 
and  interest,  although  the  execution  is  void.  If  the  plaintiff 
asks  for  consequential  or  vindictive  damages,  the  defendant  may 
show  all  the  circumstances  which  bear  upon  his  motives  and 
intention,^ 

§  5,  For  misfeasance  in  office  by  a  sheriff,  each  creditor  can 
recover  only  what  he  has  lost  by  it,  and  one  who  could  have  got 
nothing,  if  the  sheriff  had  done  his  duty,  can  demand  nothing  for 
the  breach  of  it."^ 

§  6.  Though  an  officer  conduct  the  service  of  an  execution 
irregularly,  yet,  if  the  goods  are  fairly  sold,  and  the  proceeds 
applied  to  the  execution,  only  nominal  damages  can  be  recovered. 
But  he  is  liable  for  the  amount  of  any  difference  between  the 
value  of  the  goods  and  the  sum  for  which  they  were  sold.^ 

§  7.  The  plaintiff,  the  grantee  of  an  equity  of  redemption, 
caused  the  equity  to  be  sold  on  execution  against  the  grantor,  for 
the  purpose  of  strengthening  his  title,  bid  it  off  himself,  took 
a  deed  from  the  officer,  and  paid  the  officer  only  his  fees  and 
expenses.  In  consequence  of  the  officer's  neglect,  the  sale  was 
ineffectual,  but  the  plaintiff 's  title  was  valid  independent  of  the 
sale.  In  an  action  against  the  officer  for  his  default,  the  measure 
of  damages  was  held  to  be  only  the  amount  of  fees  and  expenses 
actually  paid  by  the  plaintiff,  with  interest.^ 

§  8.  In  an  action  for  not  returning  process,  the  measure  of 
damages  is  the  actual  injury ;  and  they  will  be  merely  nominal  if 
the  debt  was  not  collectible.*^  Thus,  to  an  action  for  not  making 
return  in  a  suit  upon  a  note,  the  officer  may  set  up  the  invalidity 
of  the  note  as  a  defence.'     So,  to  an  action  for  not  returning 

1  Nightingale  r.  Scannell,  18  Cal.  315.  officer,  Brooks    v.  Hovt,    6    Pick.    468 ; 

2  Van  Pelt  y.  Littler,  14  ib.  194 ;  Dor-  Shackford  v.  Goodwin,  13  Mass.  187; 
sey  r.  Manlove,  ib.  553.  Burrell  v.  Lithgow,   2  ib.  526;  9  Conn. 

3  Hamner  v.  Griffith,  1  Grant,  193.  387  ;  Rich  v.  Bell,  16  Mass.  294. 

*  Daggett  V.  Adams,  1  Greenl.  198.  *>  Hamilton  v.  Ward,  4  Tex.  356. 

5  Se.xton  V.  Nevers,  20  Pick.  4-51.     See         ''  Woolcott  v.  Gray,  Brayt.  91. 
further,  as  to  the  general  liability  of  an 


en.    X.]  DAMAGES   IN    ACTIONS   AGAINST  OFFICERS.  641 

a  writ,  the  officer  may  show  the  existing  ability  and  h'ability  of 
the  debtor  in  mitigation  of  damages. ^  So,  in  an  action  for  non- 
return of  an  execution,  the  plaintiff  must  show  the  amount  of 
damages.     The  measure  is  pot  the  amount  of  the  execution.^ 

§  9.  For  non- return  of  an  execution  for  Commonwealth's  notes, 
the  officer  is  liable  for  the  value  of  the  notes,  with  interest  and 
damages.     Without  proof  of  value,  the  judgment  is  erroneous.^ 

§  10.  In  an  action  against  a  sheriff  for  a /a/se  return  on  ixfi.fa., 
the  measure  of  damuges  is  primd  facie  the  execution  debt.  He 
may  show  that  other  executions  in  his  hands  would  have  taken 
the  proceeds  of  a  sale,  in  mitigation  of  damages.* 

§  11.  Where  an  officer  sold  an  equity  of  redemption  on  execu- 
tion, without  having  given  notice  of  the  place  of  sale,  but  falsely 
returned  that  he  had,  whereby  a  subsequently  attaching  creditor 
was  prevented  from  obtaining  satisfaction  of  his  demand ;  in  an 
action  for  the  false  return,  the  measure  of  damages  is  the  debt 
and  interest,  if  the  value  of  the  property  attached  amounts  to  so 
much.^ 

§  12.  In  an  action  by  a  creditor  against  an  officer,  for  falsely 
returning  that  he  had  served  upon  the  creditor  a  copy  of  the  noti- 
fication that  a  debtor  intended  to  take  the  poor  debtor's  oath  (the 
copy  actually  served  being  such  that  the  creditor,  if  he  had 
chosen,  might  have  been  present  at  the  examination),  the  officer 
may  give  in  evidence,  in  mitigation  of  damages,  that  the  debtor 
had  no  attachable  or  visible  property  ;  and  if  this,  in  connection 
with  other  evidence,  satisfies  the  jury  that  the  debtor  was  enti- 
tled to  take  the  oath,  the  plaintiff  ought  to  recover  only  nominal 
damages.^ 

§  13.  In  a  suit  against  an  officer,  who  had  attached  property 
and  taken  a  receipt,  for  not  delivering  either  the  property  or  the 
receipt,  it  is  not  competent  to  show,  in  mitigation  of  damage,  that 
the  property  was  of  a  value  less  than  that  which  he  alleged  in  his 
return." 

§  13  a.  A  debtor  may  maintain  trover  against  an  officer  who 
attaches  personal  property  exempt  from  attachment ;  but,  if  he 
has  sustained  no  actual  damage,  he  can  recover  nominal  damages 

1  Woolcott  V.  Gray,  Brayt.  91.  *  Forsyth  v.  Dickson,  1  Grant,  26. 

2  Bennet    v.  Vinyanl,   o4   Miss.    216.  5  Wliitaker  v.  Sumner,  'J  Pick.  308. 
See  Sanders  i'.  Bank,  &c.,  2  Met.  (Ky.)  6  Woods  v.  Varnuni,  21  ib.  li).5. 
327  ;  Goodrum  v.  Koot,  ih.  427.  ^  Alien  v.  Doyle,  33  Maine,  420. 

3  Williams  v.  Hall,  2  Dana,  97. 

41 


642  DAMAGES.  [book   V. 

only :  and  wliere  the  property  is  mortgaged,  and  after  the  attach- 
ment by  direction  of  the  attaching  creditor,  who  has  become 
legal  owner  of  the  mortgage,  is  duly  sold  by  the  officer  upon  the 
mortgage,  and  the  proceeds  of  the  salej  being  less  than  the  amount 
of  the  mortgage  debt,  are  properly  applied  upon  that  debt ;  the 
price  should  go  in  mitigation  of  damages.^ 

§  14.  In  an  action  against  an  officer,  for  attaching  tools  of  trade, 
and  disturbing  the  plaintiff  in  the  use  and  occupation  of  his  barn: 
if  by  the  attachment  the  plaintiff  wholly  lost  the  tools,  he  may 
recover  their  value  with  interest ;  if  for  a  time  only,  the  amount 
of  injury  from  the  loss  of  their  use  ;  and,  if  the  property  was  kept 
in  the  barn  to  the  exclusion  of  the  plaintiff,  then  for  the  loss  of 
the  use  and  occupation  of  such  part  of  the  barn  as  was  not  occu- 
pied by  the  tools."^ 

§  15.  In  an  action  on  the  case,  for  an  illegal  sale  of  property 
lawfully  attached  ;  if  the  property  deteriorate  without  the  officer's 
fault,  the  value  at  the  time  of  sale  is  the  measure  of  damages. 
The  court  make  the  following  remarks,  involving  an  important 
distinction  as  to  forms  of  action  :  "  If  the  defendant  had  .  .  . 
made  a  valid  sale  of  the  mare  .  .  .  upon  the  writ,  he  would  have 
been  accountable  only  for  what  he  got  .  .  .  upon  the  sale.  .  .  . 
An  officer  is  not  liable  for  accidents  and  injury  to  property  held 
by  him  under  attachment  .  .  .  which  happen  without  any  fault 
of  act  or  neglect  on  his  part.  .  .  .  It  is  claimed,  that  .  .  . 
the  defendant  became  trespasser  ab  initio,  and,  therefore,  the 
measure  of  damages  is  the  value  of  the  property  at  the  time  it 
was  taken.  .  .  .  Whatever  might  have  been  the  rule,  if  the  plain- 
tiff had  brought  trespass  ...  he  cannot  .  .  .  insist  upon  that 
measure  of  damages  in  the  present  case."  ^ 

§  15  a.  In  an  action  against  an  officer  for  injuries  to  attached 
property  in  his  possession,  occasioned  by  his  negligence,  evidence 
of  his  wilfulness  is  admissible  to  enhance  the  damages.* 

§  16.  If,  after  seizure  and  levy  at  the  suit  of  the  plaintiff,  the 
sheriff  permit  the  property  to  be  "  run  offer  eloigned,"  he  or  his 
sureties  are  liable  to  the  plaintiff  for  the  debt,  interest,  and  costs 
in  his  execution,  if  the  property  was  of  so  much  value.° 

§  17.  If  an  attachment  is  not  vexatious  as  against  the  defendant, 

1  Cooper  V.  Newman,  45  N.  H.  339.  *  Vance  v.  Vanarsdale,  1  Bush,  504. 

2  Clapp  V.  Thomas,  7  Allen,  188.  5  Mitchell  v.  Commonwealth,  37  Penn. 

3  Walker  v.  Wilmarth,  37  Verm.  289 ;  187. 
per  Barrett,  J.  ib.  294. 


CH.    X.]  DAMAGES   IN   ACTIONS   AGAINST   OFFICERS.  G43 

the  fact,  that  the  attaching  creditor  was  actuated  by  malice  against 
a  third  person,  is  nu  ground  for  vindictive  damages  in  an  action 
on  tlie  attachment  bund.^ 

§  18.  If  the  sheriff,  following  his  instructions,  not  wiH'ully, 
wantonly,  or  with  any  unnecessary  oppression,  without  malice  or 
aggravating  circumstances,  on  the  part  of  either  officer  or  cred- 
itor, seize  the  properiy  of  a  stranger  :  the  measure  of  damages  is 
the  actual  loss,  being  the  value  thereof  and  interest  to  the  time 
of  the  verdict;^  the  cash  value  of  the  articles  in  the  market  at 
the  time  they  were  taken,  or  the  amount  of  money  it  will  take  in 
the  market  to  replace  the  articles.'^  Where  the  sheriff,  acting  in 
good  faith  and  with  good  discretion,  takes  goods  not  the  property 
of  the  defendant,  no  exemplary  damages  can  be  allowed ;  the 
measure  is  the  legal  interest  upon  the  value  while  the  owner  was 
out  of  possession  (they  having  been  replevied),  compensation  for 
depreciation,  if  any,  and  the  expense  of  replacing  them."*  Thus, 
in  a  suit  against  a  sheriff  for  an  illegal  attachment  upon  a  stock 
in  trade,  proof  of  injury  to  the  plaintiff's  business  as  a  merchant 
is  inadmissible  as  a  basis  of  damages.^  So  in  trespass  against  one 
furnishing  an  execution  to  an  officer,  and  against  the  officer,  for 
taking  a  stock  in  trade,  with  a  charge  of  malice,  and  claim  of 
vindictive  damages :  evidence  of  the  retail  value  of  the  goods  is 
inadmissible  ;  the  market  cost  of  replacing  them  is  the  proper 
basis  for  damages.^ 

§  19.  If  goods  attached,  on  a  writ  against  a  person  not  owning 
them,  are  delivered  to  the  owner,  and  by  him  receipted,  he  may 
yet  sue  the  othcer  in  trespass,  and  the  measure  of  damages  is  the 
value  of  the  goods  at  the  time  of  the  attachment,  without  interest. 
But,  in  an  action  by  the  officer,  the  owner  would  be  estopped  to 
set  up  property  in  himself.'*' 

§  20.  The  rule  of  damages,  in  case  of  articles  of  merchandise, 
allows  interest  from  the  expiration  of  the  usual  term  of  credit  on 
sale.  If  an  auction  sale  has  become  necessary  in  consequence  of 
the  levy,  the  plaintiff  will  be  entitled  to  recover  the  expenses  of 
such  sale;  as  also  the  amount  of  the  premium  for  insurance  against 

1  Wood  V.  Barker,  37  Ala.  60.  3  Cassin  v.  Marshall,  18  Cal.  G89. 

2  Plielps  V.  Owens,  11   Cal.  22;  18  ib.  *  Beveridge  c.  Wddi,  7  Wis.  4G5. 
372;  14  I'enn.  W,  1  Baldw.  138;  Smith  v.  &  De.vter  v.  Taupli,  18  Cal.  372. 
Putnev,  6  Shepl.  87  ;  Walker  v.  Borland,  <>  N'ightin<iale  r.  Scannell,  ib.  31.'). 

21  Mis.  28'J ;  Kelberg  v.  Gorliam,  23  Cal.  ^  Kobinsoii  v.  Maustield,  13  Pick.  139. 
349. 


644  >  DAMAGES.  [book   V. 

fire  effected  on  the  goods.  But  not  counsel  fees  or  other  expenses 
incurred  in  prosecuting  the  suit.^ 

§  21.  When  an  officer  is  liable  in  trespass  to  the  assignee  of 
a  mortgage  of  personal  property,  for  taking  it  on  an  execution 
against  the  mortgagor,  and  holding  it  until  the  assignee  paid  the 
amount  of  the  execution  and  officer's  fees ;  the  measure  of  dam- 
ages is  the  amount  paid,  and  interest,  and  reasonable  compensa- 
tion for  the  taking  and  detention.^ 

§  22.  A  mortgage  estops  one  who  joins  in  it  from  asserting  his 
title  only  as  against  the  mortgagee ;  and  he  may  recover  the  full 
value  in  trespass  against  an  officer  who  attaches  the  property  as 
the  mortgagor's,  notwithstanding  a  settlement,  without  the  mort- 
gagor's consent,  between  the  attaching  creditor  and  the  mortga- 
gee.^ 

§  23.  For  attaching,  in  an  action  against  a  third  person,  prop- 
erty which  remains  in  the  owner's  possession  until  judgment  and 
execution,  the  measure  of  damages  is  the  value  at  the  time  of 
taking.* 

§  24.  For  neglect  seasonably  to  collect  and  return  an  execution, 
the  amount  of  the  execution  is  the  measure  of  damages,  unless 
the  defendant  can  show  that  the  debtor  had  no  property  upon 
which  it  could  be  levied.^  Substantially  the  same  rule  is  laid 
down  in  other  language.  The  measure  of  damages  against  an 
officer  or  his  sureties,  for  neglect  to  seize  property,  is  the  actual 
loss.'^(a) 

§  25.  A  declaration  in  case  against  a  sheriff  alleged,  that, 
although  he  could  have  levied  of  goods  of  the  execution-debtor 
within  his  bailiwick  the  moneys  indorsed  on  the  writ,  yet,  disre- 

1  Ins.  Co.  V.  Conard,  1  Bald.  138.  *  Henshaw  v.  Bank,  &c.,  10  Gray,  518. 

2  Carpenter  v.   Cummings,  40    N.  H.          ^  Bowman  v.  Cornell,  39  Barb.  69. 
158.  6  Marshall  v.  Simpson,  13  La.  An.  437. 

3  Cram  v.  Bailey,  10  Gray,  87. 

(a)  In    Alabama,   upon    a    suggestion  the  property;    it  is  subordinate  to   the 

against  a  sheriff,  that  the  money  could  general  rule,  that  in  cases  not  requiring 

have  been  made  on  an  execution   by  due  punitive  damages  the  loss  actually  sus- 

diligenee,  the  measure  of  damages  is  the  tained  is  the  true  measure.     Warner  v. 

amount   of   the    judgment    and    interest  Ostrander,  44  111.  356.  - 
thereon  to  the  time  of  the  issuance  of  the         Where  a  party  claiming  an  unfinished 

execution,  togetlier  with  ten  per  cent  on  hull  of  a  ship,  winch  has  l)een  levied  upon 

that  amount.     Bondurant  v.  Lane,  9  Port,  as  the  property  of  the  builder,  is  suffered 

484.  to  finish  it  at  his  own  expense  ;  the  meas- 

The  rule,  that  the  measure  of  damages  ure  of  damages,  in  trover  by  the  purchaser 

for  a  wrongful  levy  and  sale  of  projx-rty  under  the  execution  against  him,  is  its 

is  the  value  thereof  at  the  sale,  ajjplies  value  when  levied  upon.     Green  v.  Hall, 

only  where  the   purchaser  has  obtained  1  Houst.  506. 


CH.    X.]  DAMAGES   IN    ACTIONS   AGAINST   OFFICERS.  645 

garding  his  duty,  he  did  not  levy  of  the  said  goods  the  moneys, 
or  any  part  thereof;  and,  further  disregarding  his  duty,  falsely 
returned,  cfcc.  Held,  though  the  execution-debtor  had  other 
goods,  which  the  sheriff  had  not  seized  or  not  sold,  the  measure 
of  damages  was  what  the  goods  would  have  realized  if  sold  for 
the  best  price  which  the  sherifi'  could  have  obtained.^ 

§  26.  In  an  action  against  an  officer  for  making  an  insufficient 
levy,  the  measure  of  damages  is  the  actual  injury,  and  not  the 
amount  of  the  execution,  unless  that  measures  the  injury .^ 

§  27.  When  a  sheriff  levies  upon  goods  and  refuses  to  sell,  the 
plaintiff  in  the  execution  is  entitled  to  recover  from  him  the  value 
of  the  goods  or  the  amount  of  the  execution,  whichever  is  least. 
His  only  remedy  is  against  the  sheriff  to  the  amount  of  the  goods.-^ 

§  27  a.  In  an  action  against  an  officer  for  not  serving  and 
returning  an  execution,  he  may  show  the  insolvency  of  the  debtor 
in  mitigation  of  damages,  notwithstanding  he  does  not  return  the 
precept,  nor  allege  that  it  is  lost.  It  is  incumbent  on  the  plaintiff 
to  show  that  the  precept  has  never  been  returned.* 

§  28.  For  refusal  to  levy  upon  and  sell  property,  mortgaged  for 
more  than  its  value,  upon  executions  against  the  mortgagor,  the 
officer  is  liable  only  to  nominal  damages.^ 

§  29.  Where  property  of  a  party  is  sold  under  illegal  process, 
and  bid  off  for  his  benefit  for  the  precise  sum  demanded  by  the 
process,  the  measure  of  damages,  in  an  action  of  trespass,  is  the 
amount  of  the  bid,  and  interest,  not  the  value  of  the  property.^ 
And,  in  general,  upon  a  wrongful  sale  by  an  officer,  if  the  owner 
buys  the  goods,  the  measure  of  damages  is  the  price  paid."  So, 
in  trover,  if  the  property  has  been  applied  to  an  execution  at  the 
plaintiff's  request,  only  nominal  damages  are  recovered.^  So,  in 
a  suit  brought  by  A,  one  of  two  partners,  to  recover  his  interest 
in  property  taken  wrongfully  on  an  execution  against  the  firm, 
B,  the  other  partner,  refusing  to  join  as  plaintiff,  was  joined  as 
defendant.  Held,  a  recaption  of  the  goods,  whether  before  or 
after  suit  brought,  b}^  B,  was  in  legal  effect  a  recaption  on  joint 
account  of  himself  and  A,  and  to  this  extent  would  reduce  the 

1  Mullett  V.  Challis,  2  Eng.  L.  &  Eq.  *  Varril  v.  IK'ald,  2  GroiMiI.  01. 

260.  5  Cooper  v.  Wolf,  l.j  oliir)  St.  .'')24. 

^  Commonwealth   v.    Lightfoot,    7    B.  "^  Baker  v.  Freeman,  U  Wend.  ■Wi. 

Mon.  298.  ^  Ale.\an<ler  ;-.  Helber,  :]o  Mis.  n:54. 

3  Hanmer  v.  Griffith,  1  Grant,  193.  **  Perkins  v.  Ereemau,  20  III.  477. 


646  DAMAGES.  [book  V. 

damages.^  So,  in  an  action  against  a  sheriff,  by  the  surety  of  a 
defendant  in  an  elder  execution,  for  applying  the  proceeds  of 
such  defendant's  property  upon  a  junior  execution,  whereby  such 
surety's  property  was  taken  upon  the  elder ;  the  officer  is  only 
liable  for  so  much  of  the  surety's  property  as  was  sold  for  the 
sum  so  misapplied.^ 

§  30.  But,  in  an  action  of  trespass  for  a  wrongful  levy  upon 
personal  property,  evidence  of  the  application  of  part  of  the  pro- 
ceeds of  sale  to  the  plaintiff's  rent  is  inadmissible  in  reduction  of 
damages.3  So,  in  an  action  against  the  sheriff  for  an  illegal  levy, 
although  the  plaintiff  was  himself  about  to  have  sold  the  goods 
at  auction,  evidence  is  not  admissible  that  they  brought  full  and 
fair  auction  prices,  and  what  these  prices  actually  were ;  or  that 
the  sale  was  by  a  competent  auctioneer.*  So  an  attachment  in  ■ 
favor  of  K,  containing  only  the  common  counts,  was  vacated  as 
against  F,  a  subsequent  attaching  creditor,  by  an  amendment 
introducing  a  new  and  fraudulent  cause  of  action,  on  which,  as  well 
as  on  an  honest  cause  of  action,  judgment  was  recovered,  although 
F  was  admitted  to  defend  the  action.  After  notice  from  F,  with- 
out any  offer  of  indemnity,  the  officer  sold  the  articles  under  K's 
execution,  and  returned  F's  execution  unsatisfied.  In  an  action 
therefor  by  F  against  the  officer,  it  was  held,  that  the  measure  of 
damages  was  the  amount  of  his  execution  (being  less  than  the 
proceeds  of  the  goods),  with  interest,  and  that  the  amount  of  K's 
honest  demand  was  not  to  be  deducted  from  the  value  of  the 
goods.^  And  the  tender,  by  an  officer,  of  a  part  of  the  value  of 
property  sold  under  void  process,  does  not  entitle  him  to  a  miti- 
gation of  damages.^ 

§  31.  In  an  action  against  a  sheriff  for  neglecting  to  take  the 
body  of  a  defendant  in  execution,  he  should  be  allowed,  by  way 
of  mitigating  damages,  to  prove  the  pecuniary  circumstances 
and  condition  of  such  defendant.  The  court  say:  ''  It  is  urged, 
on  behalf  of  the  plaintiff,  that  the  body  of  a  defendant  in  execu- 
tion, being  in  law  the  highest  form  of  satisfaction  of  a  judgment, 
is  equally  so,  whether  the  defendant  is  rich  or  poor  ;  and  that  it 
is  nothing  to  the  sheriff  what  kind  of  satisfaction  the  plaintiff 
may   elect.  .  .  .  But  the  conclusive  answer  to  this  is,  that  an 

1  Niglitingale  v.  Scannell,  18  Cal.  315.  4  Cassin  v.  Marshall,  18  Cal.  689. 

2  Staton  V.  Commouwealth,  2   Dana,  ^  Fairfield  v  Baldwin,  12  Pick.  388. 
397.  «  Clark  v.  Hallock,  16  Wend.  607. 

3  Graham  v.  McCreary,  40  Penn.  515. 


CH.    X.]  DAMAGES   IN   ACTIONS   AGAINST   OFFICERS.  647 

action  of  this  kind  is  given  against  the  sheriff  by  statute,  '  at  the 
suit  of  any  party  aggrieved,  for  tlie  damages  sustained  by  him.' 
This  means  pecuniary  damages.  Hence,  if  it  should  be  made  to 
appear  that  satisfaction  in  that  form  alone  could  be  of  no  pecu- 
niary advantage  to  the  plaintiff  by  reason  of  the  property  of  the 
defendant,  that  fact  would  seem  to  be  competent  on  the  question 
of  damages."  ^ 

§  32.  The  measure  of  damages,  in  an  action  against  an  officer 
for  escape^  (a)  seems  somewhat  unsettled ;  depending  in  part 
upon  the  form  of  action,  which  may  be  either  debt  (unless  abol- 
ished by  statute)  or  case. 

§  33.  It  is  laid  down  as  the  general  rule,  that,  in  the  action  of 
debt  for  an  escape,  the  measure  of  damages  is  the  debt  and  costs, 
with  interest  from  the  date  of  the  writ.^  Or,  as  is  sometimes 
held,  in  escape  from  an  execution,  the  amount  of  the  execution, 
with  interest  from  the  time  of  escape.^  Thus,  in  New  York,  in 
case  of  the  escape  of  one  arrested  on  a  ca.  sa.,  the  sheriff  is  liable 
for  the  debt,  damages,  or  sum  of  money  for  which  such  prisoner 
was  committed  ;  and  this  may  be  recovered  of  the  sheriff  since  the 
Code,  where  the  complaint  states  all  the  facts  essential,  accord- 
ing to  the  former  practice,  to  a  good  declaration  in  debt,  and 
prays  judgment  for  the  amount  of  the  judgment."* 

§  34.  But  the  prevailing  rule  now  seems  to  be,  that,  in  an 
action  on  the  case  against  a  sheriff,  for  neglecting  to  arrest,  or 
permitting  an  escape  after  arrest,  the  measure  of  damages  is  the 
injury  thereby  sustained.^  So  the  liability,  in  equity,  of  the  sheriff 
for  an  escape,  is  the  loss  actually  sustained,  and  the  court  will 
ascertain  the  amount  of  damages,  by  charging  the  sheriff  with  the 
debt,  and  throwing  on  him  the  onus  of  proving  that  less  would 
have  been  recovered  if  the  debtor  had  remained  in  custody  or 
had  given  bail.^ 

§  35.  In  a  late  case  in  Ohio,      is  held  that  in  case  of  escape, 

I  Dininny  v.  Fay,  38  Barb.  18 ;   pe  *  Kenick  v.  Orser,  4  Bosw.  384 ;  Mc- 

Johnson,  J  ib.  23.  Creery  i-.  Willett,  ib.  643. 

^  Wliiteliead  v.  Varniim,  14  Pick.  623.  ^  Ptigli )'.  M'Hae,  2  Ala.  393. 

See  (Tfiffln  v.  Brown,  2  ib.  304.  ^  Moore  c.  Moore,  25  Beav.  8 ;  4  Jur. 

3  Bowen  v.  lluntintrton.  3  Conn.  423;  (N.  S.)  250;  27  L.  J.  Cli.  385. 
Seymour  v.  Harvey,  8  ib.  03. 

(a)  A  person  was  taken  upon  an  at-  on  liim  to  surrender,  lie  shot  liimself  be- 

tachnient    for   non-payment    of   money,  fore  a  recapture,  but  the  officer  retained 

The  sheriff,  without  taking  bail,  allowed  his  lnn\y.     Held,  the  sheritt"  was  liable  as 

him  to  go  at  larj^c  on  his  promise  to  sur-  for  an    escape.      Moore    v.  Moore,    25 

render.    The  sherifi"s  otKcer  bavins  called  Beav.  8. 


648  DAMAGES.  [book   V. 

whether  voluntary  or  negligent,  it  may  be  shown,  in  mitigation  of 
damages,  that  the  debtor  was  either  insolvent,  or  wholly  destitute 
of  property.  The  court  remark  :  "  In  this  country  the  following 
rules  seem  now  to  be  settled  by  the  preponderating  weight  of 
authority  :  1.  On  proving  the  judgment,  ari-est,  and  escape,  the 
plaintiff  is,  piimd  facie,  entitled  to  recover  the  whole  amount  of 
his  debt.  2.  To  reduce  the  recovery  below  the  amount  of  the 
debt  due  from  the  escaping  prisoner,  the  onus  probandi  rests  upon 
the  defendant.  3.  For  this  purpose  the  defendant  may  not  show 
that  the  amount  of  the  debt  is  still  capable  of  being  collected  from 
the  escaped  prisoner  ;  but  may  show  his  partial  or  total  insolvency 
or  pecuniary  worthlessness  at  the  time  of  the  escape.  4.  That  on 
proving  judgment,  arrest,  and  escape,  the  plaintiff,  in  all  cases,  is 
entitled  to  recover  at  least  nominal  damages.  5.  Where  the  jury 
find  the  escape  to  have  been  not  only  voluntary  on  the  part  of  the 
officer,  but  that,  in  permitting  the  same,  he  was  actuated  by 
malice,  fraud,  or  corruption,  they  are  not  restricted  to  the  amount 
of  pecuniary  injury  actually  sustained,  and  may  include  reason- 
able exemplary  damages  ;  but,  with  this  exception,  where  evidence 
in  mitigation  is  given,  the  actual  injury  sustained  is  the  measure 
of  recovery."  1 

§  36.  In  case  of  the  escape  of  a  person  committed  for  con- 
tempt, who  is  to  stand  committed  until  a  fine  is  paid,  the  true 
measure  of  damages  against  the  sheriff  is  primd  facie  the  value 
of  the  custody  of  the  person  at  the  time  of  the  escape.  But, 
upon  proof  of  his  insolvency  and  utter  inability  to  pay,  the  dam- 
ages will  be  only  nominal.'-^ 

§  37.  The  important  rule  is  adopted,  in  a  very  late  English 
case,  that  not  only  the  party's  own  means,  but  all  reasonable 
chances,  founded  on  his  position  in  life  and  surrounding  circum- 
stances, that  but  for  the  escape  any  part  of  the  debt  would  have 
been  paid,  are  to  be  considered  in  damages.-^  (a) 

1  Hootman  v.  Slirincr,  15  Ohio  St.  43 ;  ^  Macrae  v.  Clarke,  Law  Rep.  1  C.  P. 

per  Brinkerliof,  C.  J.,  ib.  46.  403  ;     Amn.   Law    Kev.,   Jan.    1867,    p. 

^  Loosey  v.  Orser,  4  Bosw.  391.  2y8. 

(a)  Li  an  action  by  the  slieriff  against  Where  an  action  for  an  escape  is  decided 

the  county  commissioners  for  failing  to  against  the  officer,  in  an   action  b}'  liira 

provide  a  jail ;  the  measure  of  damages  is  against  the  prisoner,  he  may  recover  the 

the  sum  recovered  from  him  for  the  escape  costs  of  the  former  suit.    Griffin  v.  Brown, 

thereby  caused.     Commrs.,  &c.  o.  Butt,  2  2  Pick.  304. 

Ham.  348.     See  Dennie  v.  Middlesex,  1  In  an  action  against  a   town    for  the 

Root,  278.  omission  of  a  constable  to  arrest  a  party 


CH.   X.]  DAMAGES   IN    ACTIONS   AGAINST   OFFICERS.  G49 

§  38.  In  an  action  against  an  officer  for  taking  insolvent  sure- 
ties on  a  prison-bounds'  bond,  after  commitment  upon  a  ca.  sa., 
the  measure  of  damages  is  held  to  be  the  amount  of  the  exe- 
cution. The  solvency  of  the  defendant  cannot  be  inquired 
into.^ 

§  39.  In  an  action  for  taking  insufficient  hail,  the  measure  of 
damages  is  the  injury  actually  sustained  by  the  judgment-cred- 
itor: and  evidence  is  competent,  of  the  pecuniary  condition  of  the 
debtor  three  months  before  he  was  liable  to  be  taken  in  execu- 
tion;  any  objection  to  such  evidence  affecting  its  weight  and 
effect,  not  its  competency .^  And,  in  such  case,  "  the  fact  that 
the  principal  debtors  were  out  of  the  Commonwealth,  and  could 
not  be  arrested  on  execution,  may  be  important  in  its  bearing 
upon  the  amount  of  damages  sustained  by  the  default  of  the 
sheriff,  but  it  does  not  affect  the  rule  of  damages,  or  the  com- 
petency of  evidence  tending  to  show  the  entire  inability  of 
the  debtor  to  satisfy  the  demand.  In  all  actions  on  the  case,  the 
question  is,  what  is  the  amount  of  damage  sustained.'^  .  .  .  The 
statute  (Rev.  Sts.,  c.  92,  §  71),  abolishing  the  action  of  debt  for 
an  escape,  is  strongly  in  affirmance  of  this  rule  of  damages. 
Indeed,  the  only  object  of  such  enactment  was,  to  allow,  in  all 
cases  of  this  nature,  the  application  of  this  principle,  and  not  to 
permit  the  plaintiff,  by  changing  the  form  of  his  action,  to  evade 
this  rule  of  damages."* 

§  40.  In  an  action  by  a  judgment-creditor  against  the  sheriff 
for  not  delivering  over  the  bail-bond,  the  judgment-debtor  having 
avoided  on  the  execution,  the  sheriff  will  not  be  allowed  to  give 
in  evidence,  in  mitigation  of  damages,  that  the  debtor  has  been 
insolvent  from  the  time  of  the  rendition  of  the  judgment  against 
him.^  "  Such  evidence  would  not  be  admissible  on  the  part  of 
the  bail,  if  the  officer  had  filed  the  bail-bond,  and  the  action  had 

1  Jones  V.  Blair,  4  M'C.  281.  *  Per  Dewey,  J.,  West  v.  Rice,  9  Met. 

^  Danfortli  v.  Pratt,  9  Cusli.  318.  See     564. 

Metcalfe.  Stryker,  ol  Barb.  G2.  »  Sceley  ;•.  Brown.  14  Pick.  177  ;  Sim- 

3  Brooks  V.  Hoyt,  G  Pick.  469.  mons  i-.  Bradford,  15  Mass.  82. 

upon  a  writ  delivered  to  liini  with  tliat  admissible,  in  mitipation  of  damages,  of 
instruction,  and  with  the  necessary  afK-  these  facts,  and  also  that  the  jiarty  re- 
davit,  the  constable  snpposinfj  that  a  bond  niained  in  the  State  subject  to  arrest  for 
of  indemnity  was  requisite,  and  ffivinp  several  months.  Blodgett  f.  Brattleboro', 
back  the  writ  for  want  of  such  bond,  witli  30  Verm.  579. 
a  statement  of  this  reason ;  evidence  is 


650  DAMAGES.  [book   V. 

been  brought  against  them  ;  and  the  officer,  who  has  prevented 
the  phiintiff  from  bringing  that  action,  ought  to  leave  him  another 
remedy,  at  least  as  good  as  that  of  which  he  has  been  unjustly 
deprived.  The  officer,  by  such  a  proceeding,  voluntarily  assumes 
the  situation  of  the  bail ;  and  is  subject  to  all  their  liabilities, 
although  he  may  not  have  all  their  privileges."  The  officer  hav- 
ing falsely  returned  that  he  had  taken  bail,  the  court  proceed 
to  remark :  "  When  the  officer  returned  that  he  had  taken  bail, 
which  he  knew  was  not  literally  true,  he  must  be  understood  as 
intending  that  he  would  himself  be  the  bail,  or  surety  for  the 
debtor."  ^ 

§  41.  In  an  action  against  an  officer  for  not  returning  the 
bail-bond  ;  if  he  deliver  or  offer  it  to  the  plaintiff  in  season  for  a 
scire  facias  against  the  bail,  he  is  liable  for  only  nominal  dam- 
ages.^ 

§  41  a.  The  measure  of  damages,  in  an  action  against  a  town  by 
the  purchaser  of  land  sold  by  the  constable  for  taxes,  to  recover 
for  the  constable's  neglect  in  his  proceedings,  in  consequence  of 
which  no  valid  title  was  conveyed  by  his  deed,  is  the  amount  of 
the  purchase-money,  with  interest.^ 

§  41  b.  In  an  action  against  a  tax-collector,  for  the  illegal  sale 
of  property  for  unpaid  taxes,  the  plaintiff  himself  having  been 
the  purchaser,  the  measure  of  damages  is  the  price  bid  at  the 
sale,  deducting  the  tax.* 

§  42.  In  an  action,  by  an  officer,  against  a  person  who  has 
taken  goods  seized  by  virtue  of  an  execution,  the  plaintiff  can 
only  recover  the  amount  of  the  execution.^  Thus,  where 
property  levied  on  is  taken  from  the  officer  by  a  mortgagee, 
whose  mortgage  is  void  against  creditors,  the  officer  can  re- 
cover only  the  amount  of  the  execution,  not  the  value  of  the 
property.*^ 

§  43.  In  an  action  by  a  sheriff  against  a  person  by  whose  com- 
mand he  had  made  an  attachment  and  sold  on  execution  certain 
goods,  the  value  of  which  he  has  been  obliged  to  pay  to  their  real 


1  Per  Jackson,  J.,  Simmons  v.  Brad-  *  Alexander  v.  Helber,  35  Mis.  334. 

ford,  15  Mass.  84,  85.  5  Spoor  v.  Holland,  8  Wend.  445. 

■^  Glezen  v.  Rood,  2  Met.  490.  6  Linville  v.  Black,  5  Dana,  176. 
3  Saulters  v.  Victory,  35  Vt.  351. 


CH.    X.]  DAMAGES   IN   ACTIONS   AGAINST   OFFICERS.  651 

owner  in  another  action:  the  defendant  is  h'able  for  the  whole 
amount  tliiis  recovered,  tliough  some  of  the  counts  inchided  the 
breaking  open  of  the  owner's  store,  with  which  this  defendant 
had  nothing  to  do ;  the  whole  being  but  one  transaction  in  the 
eye  of  the  law.^ 

1  Nelson  v.  Cook,  19  111.  440. 


652  DAMAGES.  [book   V. 


CHAPTER  XI. 

DAMAGES   IN    CASE   OF   PRINCIPAL  AND  AGENT,  MASTER   AND    SERVANT  ; 

BAILMENT. 

1.  Master    and    servant;     principal    and        11.  Pledge, 
agent; — action  of  the   principal  against  the         14.  Common  carriers;  neglect  or  delay  in 

agent.  delivering. 

6.  Liability  of  a  principal  for  his  agent.  19.  Injury  to  property  from  neglect. 

7.  Action  of  agent,  &c.,  against  his  prin-         22.  Special  and  prospective  damages. 
cipal,  Sec.  25.  Miscellaneous  points. 

8    Of  master  against  third  person.  29.  Damages  in  actions  by  bailees. 

9.  Bailment.  32.  Telegrams. 

§  1.  The  measure  of  damages,  in  an  action  against  a  factor  for 
selling  goods  in  violation  of  instructions,  is  the  difference  between 
the  price  obtained  and  the  minimum  price  limited  by  the  instruc- 
tions.^ 

§  1  a.  Where  the  gist  of  an  action  is  for  a  breach  of  duty  by  a 
factor,  in  not  selling  according  to  instructions,  the  rule  of  damages 
is  the  highest  market  price  of  the  property,  prevailing  between 
the  time  of  the  conversion,  and  a  reasonable  time  thereafter, 
within  which  to  commence  the  action.  Where  the  intention  of 
the  party  to  sell  the  property  at  a  definite  time  can  be  ascertained, 
that  intention  should  be  considered,  in  determining  the  time 
within  which  to  limit  the  inquiry,  as  to  the  market  price.  The 
plaintiff  may  restrict  the  time  within  which  to  determine  the 
measure  of  damages,  by  signifying  his  election  to  treat  the  prop- 
erty as  having  vested  in  another.^ 

§  2.  A,  a  merchant  at  Seville,  wrote  to  B,  his  agent  at  Liverpool, 
desiring  him  to  insure  a  cargo  of  fruit  to  that  place.  B,  acting 
bond  ^de,  instructed  C,  who  had  occasionally  acted  as  A's  agent 
in  London,  to  get  a  policy  there.  C,  for  that  purpose,  employed 
D,  an  insurance-broker,  who  effected  the  insurance  in  his  own 
name,  and  afterwards  received  the  amount  of  a  loss  from  the 
underwriters,  but  retained  it,  claiming  a  lien  for  a  debt  due  to  him 
from  C,  in  respect  of  former  premiums  and  commissions.     In  an 

1  Blot  V.  Boiceau,  1  Sandf.  111.  2  Scott  v.  Rogers,  31  N.  Y.  076. 


CH.    XI.]  PRINCIPAL    AND   AGENT,    ETC.  ;    BAILMENT.  653 

action  by  A  against  B,  for  neglecting  to  effect  a  good  and  availa- 
ble insurance,  and  to  take  steps  to  get  the  money,  and  for  money 
had  and  received,  the  judge  —  treating  it  as  immaterial  whether 
the  letter  of  instructions  from  B  to  C  had  been  shown  to  D  or 
not  —  ruled,  that  B  had  violated  his  duty  as  agent,  by  employing 
another  agent  in  London,  instead  of  effecting  the  policy  himself, 
and  was  responsible  for  the  whole  amount  received  from  the 
underwriters  by  D.  Held,  erroneous ;  that,  if  B's  letter  had  been 
thus  shown,  D  could  acquire  no  lien  upon  the  proceeds,  and  his 
unlawful  detention  of  the  money  could  not  give  A  a  right  of 
action  against  B  fur  the  whole  amount,  though  B  might  be  liable 
for  some  nominal  damages  for  breach  of  duty  as  agent. ^ 

§  3.  And,  in  general,  where  an  agent  fails  to  execute  orders 
faithfully,  damages  are  not  recoverable  for  any  speculative  loss, 
but  only  for  positive  and  direct  loss,  resulting  from  the  breach  of 
orders.^ 

§  3  a.  In  an  action  brought  in  Massachusetts  against  an  agent 
in  a  foreign  country  by  the  principal  for  refusing  to  deliver  up  to 
him  money  and  evidences  of  iudebtedneS'S  in  his  hands,  such  sum 
will  be  allowed,  in  the  currency  of  Massachusetts,  as  most  nearly 
approximates  to  that  which  he  would  be  entitled  to  recover 
abroad.'^ 

§  3  h.  Where  a  part  of  certain  machinery  was  consigned  to  the 
defendant  as  the  plaintiff's  agent,  to  be  forwarded  to  him,  and 
the  defendant  negligently  detained  it,  whereby  the  whole  machin- 
ery was  kept  idle  ;  held,  the  measure  of  damages  was  not  what 
might  have  been  made  by  the  machinery  during  the  time,  but 
interest  on  the  capital  invested,  the  hire  of  hands  necessarily  unem- 
ployed, the  cost  of  sending  for  the  missing  machinery,  and  all  other 
damages  that  resulted  necessarily  from  the  defendant's  negligence."* 

§  4.  In  an  action  against  a  notary,  for  failing  to  give  notice  of 
the  dishonor  of  paper,  according  to  his  undertaking,  the  measure 
of  damages  must  be  the  injury  sustained  by  the  neglect ;  in  esti- 
mating which,  the  solvency  of  the  party  to  whom  notice  should 
have  been  given  is  a  material  element.^ 

§  5.  In  an  action  against  bankers  for  refusing  to  pay  a  trader's 

I  Caliill  v.  Dawson,  3  C.  B.   (N.  S.)  '  Xickcrsoii  r.  Socsman,  08  Mass.  364. 

106.  4  Foard  v.  Atlantic,  8  Jones,  235. 

-'  Bell  V.  Cunningham,  3  Pet.  69.  5  Bank,  &t;.  v.  .Marston,  7  Ala.  108. 


654  DAMAGES.  [book  .V. 

checks,  tliongh  having   sufficient  assets  of  the  trader,  he   may 
recover  substantial  damages,  without  proof  of  actual  damage.^ 

§  6.  Exemplary  damages  cannot  be  recovered  for  malicious  acts 
of  an  agent,  unless  authorized  or  ratified.  As  against  a  railroad, 
for  a  wrongful  expulsion  from  a  car  by  the  conductor.^  So  a 
stage-coach  proprietor  cannot  be  mulcted  in  exemplary  damages 
for  the  negligence  or  fault  of  his  servant,  though  the  jury  may 
award  more  than  the  damages  actually  sustained.^ 

§  7.  One  employed  for  a  definite  time,  if  improperly  dismissed 
during  the  time,  is  prima  facie  entitled  to  recover  the  agreed 
price  for  the  whole  term.  But  it  may  be  shown,  in  mitigation  of 
damages,  the  burden  of  proof  being  upon  the  defendant,  that  the 
plaintiff  was  otherwise  profitably  employed,  or  refused  an  oifer  of 
such  employment.'^ 

§  8.  In  an  action  for  enticing  away  an  apprentice,  where  there 
has  not  been  a  loss  of  service  during  the  entire  apprenticeship, 
and  where  the  apprentice  is  not  taken  out  of  the  State,  prospec- 
tive damages  cannot  be  recovered.^ 

§  9.  Where  goods  are  hailed,  to  be  exchanged  for  others  which 
the  bailee  converts  to  his  own  use ;  the  value  of  the  latter,  not 
the  former,  is  the  measure  of  damages.*^ 

§  10.  Any  neglect  or  omission  of  the  bailee  of  goods  intrusted 
to  him  for  sale,  or  his  wilful  or  negligent  sale  for  a  sum  less  than 
their  real  value,  should,  in  a  suit  against  him,  be  alleged,  made 
the  ground  of  a  claim  for  special  damages,  and,  on  denial,  proved ; 
the  damages  depending  upon  the  value  of  the  property  in  the 
hands  of  the  plaintiff  at  the  time  of  the  neglect  complained  of. 
If  the  acts  of  the  bailee  amount  to  a  conversion,  the  damages 
will  be  the  full  amount  of  the  original-owner's  interest  in  the 
property,  less  the  charges  contemplated  in  the  agreement." 

§  10  a.  In  an  action  against  a  warehouseman  for  the  loss  of 
goods,  interest  is  properly  allowed.^ 

§  10  h.  The  measure  of  damages  recoverable  by  a  pawnbroker, 

1  Rolin  V.  Steward,  25  Eng.  L.  &  Eq.  ^  Moore  v.  Love,  3  Jones,  215.      See 

341.  Gray  v.  Crocheron,  S.Port.  191. 

-  Milwaukie,   &c.  v.  Finney,  10  Wis.  ^  Chase  v.  Blaisdell,  4  Min.  90. 

388.  T  Chase  v.  Blaisdell,  4  Min.  90. 

3  Wardrobe  v.  Stage  Co.,  7  Cal.  118.  8  Schwerin  v.  McKie,  5  Rob.  (N.  Y.) 

*  King    V.   Steiren,  44    Penn.  105 ;    2  404. 
Greenl.  Ev.,  §  261  ;  Costigan  v.  The  Mo- 
hawk, &c.,  2  Denio,  609. 


CH.    XI.]  COMMON    CARRIERS.  655 

for  a  distress  of  goods  deposited  with  him,  is  the  value  of  the 
goods,  and  not  merely  of  his  interest  in  them.^ 

§  11.  "Where  goods  pledged  were  attached,  and  taken  from  the 
possession  of  the  pledgee,  at  the  suit  of  the  creditor  of  the  pledgor, 
without  payment  or  tender  of  the  amount  for  which  they  were 
pledged,  as  provided  by  statute ;  the  attachment  being  void,  and 
the  plaintiff  liable  to  the  pledgor  for  all  beyond  the  debt,  the 
pledgee  is  entitled  to  recover  of  the  officer  tlie  full  value  of  the 
goods,  and  not  merely  the  amount  due  from  the  pledgor.^  So  in 
Maine,  where  property  pledged  was  taken  and  sold  on  execution, 
before  the  Statute  of  18o5,  c.  188,  as  the  property  of  the  pledgor  ; 
in  an  action  by  the  pledgee  to  recover  the  goods,  the  measure  of 
damages  is  the  value  of  the  property,  and  not  the  amount  of  his 
lien  as  against  the  pledgor  only.^ 

§  12.  In  trover,  by  the  pledgee  against  the  pledgor,  for  the  con- 
version of  a  pledge,  delivered  by  the  former  to  the  latter  for 
a  special  purpose,  the  measure  of  damages  is  the  value  of  the 
pledge,  with  interest,  unless  such  amount  exceeds  the  sum  due 
the  pledgee,  in  which  case  that  sum  is  the  proper  measure  of 
damages.^ 

§  13.  The  plaintiffs,  a  bank,  received  from  A  a  pledge  of  stocks 
to  secure  a  debt.  Under  a  power  of  attorney  fi'om  A,  the  stocks 
were  afterwards  transferred  to  them  the  next  year,  A  credited 
therewith,  for  a  less  sum  than  the  amount  of  the  debt  at  the  time 
of  the  pledge,  and  the  following  year  the  stocks  were  sold  and 
transferred  by  the  bank  to  its  own  officers  without  notice  or 
judicial  sale.  Subsequently  to  the  pledge,  A  gave  two  notes  to 
the  bank,  indorsed  for  his  accommodation  by  the  defendant,  who 
set  up,  as  a  defence  thereto,  a  wrongful  conversion,  and  increase 
in  the  value,  of  the  stocks,  to  an  amount  exceeding  A's  whole 
indebtedness.  Held,  the  pledge  covered  the  notes  in  question  ; 
that  the  plaintiffs,  before  selling,  were  bound  to  call  for  a  redemp- 
tion, and  notify  the  sale,  and  were  guilty  of  gross  neglect  of  duty 
in  failing  to  do  so  ;  that  the  private  sale  to  their  own  officers  was 
illegal ;  and  that  the  defence  was  good.^ 

§  14.  In  an  action  against  a  carrier  for  not  delivering  goods 

1  Swire  V.  Leach,  18  C.  B.  (N.  S.)  479.         <  Hays  r.  Riddle,  1  Sandf.  24S. 

2  Pomeroy  r.  Smith,  17  Pick.  85.  5  Sitgreaves  v.  Farmers',  &c.,  (Penn.) 

3  Soule  V.  Wliite,  2  Shep.  43G.  13  Wriglit ;  Law  Keg.,  Feb.  IbGG,  p.  250. 


656  DAMAGES.  [book   V. 

according  to  contract,  or  in  reasonable  time,  more  especially  if 
the  place  is  within  his  route,  or  if  expressly  informed  of  a  favor- 
able market  for  the  goods  at  the  particular  time  and  place  ;  the 
measure  of  damages  is  the  net  value  of  the  goods  at  the  place  of 
delivery,  or  the  end  of  the  carrier's  route,  being  the  value  less 
the  freight,  and  at  the  time  when  they  should  have  been  delivered, 
with  interest.^  The  value  of  the  goods  at  such  place  is  the  price 
for  which  they  can  be  got  to,  not  at  that  place.^ 

§  15.  The  rule  is  applied  in  case  of  railroads.  The  measure  of 
damages  in  an  action  against  a  railroad  corporation  for  the  non- 
delivery, within  a  reasonable  time,  of  goods  intrusted  to  them  for 
transportation,  without  actual  conversion,  is  not  the  value  of  the 
goods,  but  the  difference  in  value  at  the  place  where  they  were 
deliverable,  at  the  time  when  in  fact  they  were  delivered,  from 
their  value  when  they  should  have  been  delivered.  In  case  of 
refusal  to  carry  such  goods,  however  unlawful,  the  measure  of 
damages  is  the  dijfference  between  the  value  of  goods,  at  the 
point  of  destination,  when  they  should  have  arrived,  and  at  the 
same  time  at  the  place  of  detention,  including  necessary  expenses 
incurred  by  such  detention,  and  deducting  reasonable  charges  of 
transportation.^  In  another  case,  where  a  railroad  failed  to  deliver 
flour  at  a  day  agreed  upon,  the  measure  of  damages  was  held  to 
be  the  difference  between  the  contract  price  of  the  flour  on  that 
day  and  the  price  actually  realized.* 

§  16.  The  defendant  contracted  with  the  plaintiff  to  carry  pease 
from  Canada  to  New  York  by  water,  but,  through  negligence 
and  needless  delay,  could  carry  them  that  season  only  to  Burling- 
ton, the  lake  being  frozen.  He  refusing  either  to  forward  them 
by  railroad,  or  deliver  them  to  the  plaintiff  but  on  payment  of 
freight,  the  plaintiff  replevied  and  sent  them  to  Boston,  to  market, 
which  was  a  judicious  disposition  of  them.  Held,  the  plaintiff 
should  recover  the  difference  between  the  net  amount  realized 
from  the  sale  of  the  pease  in  Boston,  and  the  net  amount  they 
would  have  sold  for  in  New  York,  at  the  time  when  they  should 

i  Spring  V.  Haskell,  4  Allen,  112  ;  Sis-  Caster,  13  Ind.  164  ;  Taylor  v.  Collier,  26 
son  V.  Cleveland,  14  xMich.  489  ;  Tlie  City  Geo.  122;  Davis  v.  New  York,  &c.,  1  Hilt, 
of  Dublin,  1  Benedict,  D.  C.  46;  Weston  543;  King  v.  Woodbridge,  34  Verm.  565. 
V.  Grand,  54  Maine,  376  ;  Peet  v.  Chicago,  -  RiceV  Baxendale,  7  H.  &  N.  96. 
20  Wis.  594.  See  Van  Winkle  v.  United  3  Galena,  &c.  v.  Rae,  18  III.  488 ;  Ingle- 
States,  &c.,  37  Barb.  122;  Zeigler  v.  dew  r.  Northern,  &c.,  7  Gray,  86 ;  Briggs 
Wells,  23  Cal.  179;  Hayes  i-.  Wells,  ib.  v.  N.  York,  &c.,  28  Barb.  515. 
185  (a  case  relating  to  drajls)  ;  Dean  v.  *  Medbury  v.  New  York,  &c.,  26  Barb. 
Vaccaro,  2  Head,  488 ;  Michigan,  &c.  v.  564. 


CH.    XI.]  COMMON    CARRIERS.  657 

have  arrived  there,  had  the  defendant  properly  discharged  his 
contract. 1 

§  17.  The  defendant,  a  carrier  from  Buffalo  to  Albany,  agreed 
with  the  plaintiff  to  carry  barrels  of  apples  from  A  and  13,  two  of 
its  stations,  to  Albany,  and  there  deliver  them  to  the  S  line.  The 
barrels  were  directed  to  the  plaintiff,  in  the  city  of  New  York, 
care  of  the  S  line,  Albany.  The  apples,  with  the  knowledge  of 
the  defendant,  were  purchased  for  the  New  York  market.  After 
delivery  by  the  defendant  to  the  S  line  at  Albany,  they  were 
immediately  forwarded  to  New  York,  where  they  were  opened^ 
and  the  apples  found  injured  by  frost,  in  consequence  of  delay. 
Held,  if  the  damages  should  have  been  measured  by  the  value 
or  depreciation  at  Albany,  such  value  or  depreciation  in  the  New 
York  market  might  also  be  shown  as  a  basis  of  the  former.  Also 
that,  in  the  absence  of  any  allegation  or  proof  of  a  difference,  or 
that  the  depreciation  was  after  leaving  Albany,  the  jury  might 
be  instructed  to  find  the  value  to  be  that  proved  at  New  York, 
deducting  the  freiglit  from  Albany.^ 

§  18.  The  measure  of  damages  against  a  common  carrier,  for 
delay  in  the  delivery  of  machinery,  is  the  value  of  its  use  during 
the  time  of  such  delay.  If  notice  of  the  intended  use  had  been 
given  to  the  carrier,  special  damages  may  be  recovered,  under 
proper  averments  in  the  declaration.^ 

§  19.  In  an  action  against  a  carrier  for  injuries  to  cattle  through 
his  neglect,  the  measure  of  damages  is  the  diminution  of  their 
value  while  they  were  in  his  charge^ 

§  20.  The  measure  of  a  carrier's  liability  for  property  destroyed 
by  his  negligence,  which  has  not  been  the  subject  of  traffic,  is  the 
fair  value  of  the  property  at  or  near  the  place  of  its  destruction. 
But  it  would  seem  that  the  jury  may  consider  the  fact,  that  the 
property  has  a  market  value,  at  another  place  to  which  it  was 
destined,  and  towards  which  the  carrier,  in  the  course  of  the 
usual  and  regular  communication,  was  then  taking  it,  in  connec- 
tion with  the  hazards  and  expenses  attendant  upon  the  residue 
of  the  intended  voyage.^ 

§  21.  Where  goods  are  injured  on  shipboard,  the  measure  of 
damages  is  the  difference    between  their  value  in  their  damaged 

1  Laurent  v.  Vaughn,  30  Verm.  90.  *  Black  v.  Tlie  Camden,  &c.,  45  Barb. 

2  Marsliall  v.  New  York,  &c.,  45  Barb.     40. 

602.  *  Harris  v.  Panama,  &c.,  3  Bosw.  7. 

8  Priestly  v.  Northern,  &c.,  2G  111.  205. 

42 


658  DAMAGES.  [book   V. 

state,  and  their  value  at  the  port  of  destination,  if  they  had  been 
delivered  in  good  order  ;  which  should  be  ascertained  by  a  public 
sale.i 

§  21a.  In  an  action  against  a  carrier,  for  injuries  to  cattle 
received  for  transportation  through  negligence,  the  rule  of  dam- 
ages is  the  difference  in  value  between  the  cattle  when  placed  in 
the  carrier's  charge,  and  their  condition  when  delivered,  so  far 
as  caused  by  the  injuries  on  the  way.  It  is  in  the  discretion  of 
the  jury  whether  to  allow  interest.^ 

§  21  h.  When  property  in  charge  of  a  carrier  is  lost  on  a 
voyage,  the  measure  of  damages  is  the  net  value  at  the  place  of 
destination.^ 

§  21  c.  When  the  loss  of  cargo  occurs  at  the  place  where  it  is 
laden,  the  carrier  is  liable  for  its  value  at  such  port ;  but,  when 
the  loss  happens  after  the  voyage  has  begun,  for  the  value  at  the 
port  of  delivery.* 

§  21  d.  In  an  action  against  carriers  for  the  loss  of  goods, 
occasioned  by  their  failure  to  transport  them,  the  measure  of 
damages  is  the  market  price  at  the  place  and  time  they  should 
have  been  delivered.^     So,  when  goods  are  damaged  in  transitu.^ 

§  22.  In  case  against  a  carrier  for  negligence,  only  such  dam- 
ages can  be  recovered,  as  result  necessarily  from  the  act  com- 
plained of,  unless  special  damages  are  alleged  and  proved.' 

§  23.  A  carrier  who  at  first  wrongfully  refuses  to  deliver,  but 
afterwards  delivers,  goods  consigned  to  a  manufacturer,  is  not  liable 
for  consequential  damages  arising  from  delay  to  the  consignee's 
works,  or  for  a  loss  of  profits  caused  by  such  refusal;  though  he 
is  liable  for  the  expense  of  sending  to  the  carrier's  office  a  second 
time  for  the  goods.^  So  where  the  plaintiff  sent  goods  from  A, 
by  railroad,  to  his  traveller  at  B,  which  through  its  negligence 
were  not  delivered  before  the  traveller  left  B  ;  held,  the  profits, 
which  the  plaintiff  would  have  made  by  a  sale  at  B,  could  not  be 
recovered  as  damages  from  the  corporation.^  So  where,  by 
default  of  a  common  carrier  in  transporting  coal  according  to 
contract,  a  manufacturer  suffered  loss  by  reason  of  a  necessary 

1  Henderson  v.  Maid,  &c.,  12  La.  An.  ^  Lewis  v.  Ship  Success,  18  La.  An.  1. 
352.  ''  Hunter  v.  Stewart,  47  Maine,  419. 

2  Black  V.  Camden,  45  Barb.  40.  8  Waite  v.  Gilbert,  10  Cush.  177. 

8  Fowler  v.  Davenport,  21  Te.x.  626.  9  Great,  &c.  v.  Kedniavne,  Law  Eep.  1 

4  Krohn  ;•.  Oechs,  48  Barb.  127.  C.  P.  32y  ;  Araer.  Law   Kev.,  Oct.  1866, 

5  Adams  v.  McDonald,  1  Bush,  32.  p.  108. 


CH.    XI.]  COMMON    CARRIERS.  659 

suspension  of  business,  there  being  no  other  reasonable  means  of 
supply  ;  evidence  of  the  amount  of  profit  wliich  might  have  been 
reah'zed  is  not  admissible.^  So  a  party  delivered  to  a  railway 
company  goods  to  carry  from  A  to  B,  paying  the  carriage,  to  be 
delivered  to  a  party  at  B.  Part  of  the  transit  was  effected  by 
another  railway  companj'^,  which  refused  to  deliver  up  the  goods 
to  the  consignee  without  payment  of  an  additional  specified  sum; 
but,  an  action  having  been  threatened  against  the  contracting 
company,  an  offer  was  made  to  deliver  them  up  without  that 
payment.  The  action  was  however  persevered  in,  tiie  plaintiff 
declaring  against  the  company  as  carriers,  with  a  count  in  trover, 
subsequently  to  which  the  goods  were  given  up  in  a  damaged 
state.  Held,  the  additional  sum  demanded  for  the  goods  was 
not  the  measure  of  damage.  It  was  questioned  whether  the 
plaintiff  could  recover  for  deterioration  of,  and  damage  to,  his 
goods,  or  for  loss  of  profits,  while  detained  by  the  company.  It 
was  remarked  by  the  court:  "  It  is  impossible  to  hold  that  a  per- 
son, who  really  has  sustained  an  injury  of  which  he  complains,  is 
at  all  times  tntitled  to  act  in  an  obstinate  and  perverse  manner 
and  say,  *I  care  nothing  in  reality  about  the  real  loss  occasioned 
to  me  by  this  injury,  but  I  have  a  claim  against  the  other  party, 
and  I  will  let  my  action  go  on.'  On  the  other  hand,  all  persons 
are  responsible  for  all  the  natural  and  legal  consequences  result- 
ing from  acts  done  by  them  in  violation  of  the  rights  of  others, 
although  they  are  not  for  damage  which  might  have  been  avoided. 
The  jury  are  entitled  to  look  at  the  circumstances  and  at  the 
conduct  of  both  parties  in  every  case,  see  where  blame  is,  and 
adjudicate  in  what  way  the  actual  mischief  shall  be  borne,  accord- 
ing to  tlie  way  the  parties  have  conducted  themselves.  That  is 
entirely  within  the  province  of  the  jury." '-^ 

§  24.  The  plaintiff,  a  hop-grower  in  Kent,  sent  to  London,  by 
railway,  some  pockets  of  hops,  consigned  to  a  purchaser.  The 
company  kept  the  hops  for  some  days  on  their  premises  in  an 
open  van,  whereby  a  small  portion  was  stained  by  wet,  and  the 
purchaser  rejected  the  whole,  as  he  was  entitled  to  do  by  the 
custom  of  the  market.  The  plaintiff  dried  the  stained  hops,  and 
they  were  rendered  as  good  as  ever  for  actual  use,  but  the  stain- 
ing had  depreciated  the  market  value  of  the  bulk.     The  plaintiff' 

1  Cooper  t'.  Youiifi,  22  Geo.  209.  (N.  S.)  1303 ;  Excli. ;  4  II.  &  Nor.  805 ;  per 

2  Davis    V.  N.   W.   Railway,    i  Jur.     roUook,  C.  B.,  ib. 


6G0  DAMAGES.  [book   V. 

sent  the  hops  to  a  factor  for  sale,  but  at  that  time  the  market 
price  of  hops  had  considerably  fallen  from  what  it  was  at  the  time 
the  hops  ought  to  have  been  delivered.  Held,  he  was  entitled  to 
recover  the  amount  of  such  depreciation  in  value,  not  merely  in 
the  value  of  the  portion  actually  damaged.  Also  the  difference 
in  the  market  price  above  referred  to.^ 

§  24  a.  The  plaintiff  having  sent  hops  of  more  than  <£10  value, 
by  a  railway,  the  consignee,  having  refused  to  receive  them  on 
account  of  their  not  being  delivered  in  time,  afterwards  sent  to 
the  plaintiff  a  signed  memorandum  of  the  original  contract.  Held, 
in  assessing  the  damages  for  negligence,  the  jury  were  not  at  lib- 
erty to  take  into  account  the  loss  of  the  bargain.^ 

§  24  b.  The  plaintiff'  sent  goods  from  M.,  by  the  defendant's 
railway,  to  his  traveller  at  C,  the  delivery  of  which  was  by  the 
defendant's  negligence  delayed  till  the  traveller  left  C,  and  the 
profits  from  a  sale  at  C.  were  lost.  Held,  such  profits  could  not 
be  recovered  as  damages.^ 

§  24  c.  A  commercial  traveller  delivered  a  parcel  of  samples 
to  a  carrier,  to  be  carried  to  A.,  but  did  not  state  the  contents, 
nor  the  purpose  for  which  it  was  required.  By  the  carrier's 
negligence,  the  parcel  was  delayed,  and  the  traveller  spent  three 
days  at  A.,  unemployed,  waiting  for  it.  Held,  in  an  action  against 
the  carrier  for  negligence,  the  hotel  expenses  of  the  traveller, 
while  so  waiting,  were  too  remote,  and  could  not  be  recovered.* 

§  25.  It  is  held  that,  as  a  common  carrier  owes  indemnity  to 
the  shipper  of  goods  for  delay  in  transportation,  legal  interest 
upon  the  price  during  the  delay  may  be  recovered,  as  the  measure 
of  such  indemnity.^  But,  in  an  action  against  a  carrier  for  negli- 
gence, it  is  error  to  instruct  the  jury,  as  matter'  of  law,  that  the 
plaintiff  is  entitled  to  interest  on  the  damages.^ 

§  26.  In  an  action  against  a  carrier,  for  damage  to  goods  in 
his  hands,  it  is  enough  to  prove  their  condition  and  value  when 
delivered  to  him  and  when  received  by  the  consignee;  the  fact 
that  the  damage  was  partly  caused  by  bad  packing  goes  only  to 
the  amount  of  damages.'^ 

1  CoUard  v.  S.  E.  Eailway  Co.,  7  H.  &  *  Woodger  v.  Great,  Law  Eep.  2  C.  P. 
N.  96.  318. 

2  Simmons  v.  Southeastern,  7  Hurl.  &         5  Murrell  v.  Dixey,  14  La.  An.  298. 
Nor.  1002.  6  Black  v.  Tlie  Camden,  &c.,  45  Barb. 

3  Great  v.  Redmayne,  Law  Eep.  1  C.  40. 

P.  329.  "  Higginbotham  v.  G.  N.  Eailway  Co., 

2  Post.  &  Fin.  796,  10  W.  E.  358. 


CH.    XI.]  COMMON    CARRIERS — ACTION   BY   BAILEE.  GGl 

§  27.  The  receipt  of  the  proceeds  of  sale  from  a  factor  making 
it,  to  whom  tlie  carrier  had,  contrary  to  orders,  delivered  the 
goods,  is  no  bar  to  the  recovery  of  damages  from  the  carrier.^ 

§  28.  Where  an  article  was  delivered  to  a  common  carrier,  to 
be  delivered  to  a  factor,  at  a  certain  market,  who  had  been  in- 
structed not  to  sell  until  ordered,  and  such  carrier  delivered  it  to 
a  factor  at  a  difterent  market,  who  had  no  instructions  concern- 
ing it,  and  it  was  by  him  immediately  sold,  and  the  article  rose 
ip  price  from  that  day  until  the  suit  was  brought ;  held,  in  a  suit 
against  the  carrier,  brought  within  a  reasonable  time,  the  plain- 
tiff was  entitled  to  recover  the  highest  price  attained  within  tliat 
period.2 

§  28  a.  A  passenger-cannier  may  become  liable  for  special  dam- 
ages to  one  not  a  passenger.  Thus  the  plaintiff  went  on  board  a 
steamboat  on  the  Mississippi  River,  at  one  of  her  intermediate 
landings,  and,  while  transacting  business  with  the  boat,  was  taken 
off  to  a  landing  below,  against  his  remonstrance.  Held,  he  was 
entitled  to  a  reasonable  time  to  transact  the  business  (to  take 
charge  of  a  lady  passenger),  and  to  damages  amounting  to  the 
reasonable  value  of  the  time  lost  and  expense  incurred  in  being 
taken  to  and  returning  from  the  place  at  which  he  was  landed ; 
and,  if  the  master  of  tiie  boat  could  have  caused  him  to  be  landed 
at  any  point  easy  of  access  between  the  places  where  he  was 
taken  off  and  where  he  was  finally  landed,  but  maliciously  or 
wantonly  and  wrongfully  refused  so  to  do,  to  such  further  damages 
as  would  be  reasonable  punishment  for  such  malicious  conduct.^ 

§  28  b.  In  an  action  for  negligence  as  a  common  carrier, 
whereby  the  plaintiff's  arm  was  broken,  tlie  declaration  was  for 
damages  arising  from  pain,  loss  of  time,  and  expenses.  The 
plaintiff  offered  to  show  the  number  of  his  family,  and  that  they 
were  dependent  upon  him  for  support,  and  that  in  consequence 
of  the  injury  he  became  embarrassed  ;  but  the  evidence  was 
rejected.  The  court  remarked :  "  In  estimating  damages,  the 
jury  may  consider,  not  only  the  direct  expenses  incurred  by  the 
plaintiff,  but  the  loss  of  his  time,  the  bodily  suffering  endured, 
and  any  incurable  liurt  inflicted;  for  these  may  be  classed  among 
the  necessary  results.  But  alleged  damages  sustained  by  the 
plaintiff,  from  the  circumstance  of  his  being  the  head  of  a  family 

1  Arrington    v.    AYilmingtoii,    &c.,  6  2  11,1,1. 

Jones,  68.  »  Stoiieseifer  v.  Sheble,  31  Mis.  243. 


662  DAMAGES.  [book   V. 

dependent    upon  him,  have   no  necessary   connection  with  the 
injury  done  to  his  person."  ^ 

§  29.  A  carrier,  who  is  responsible  for  the  safety  of  the  cargo, 
may  have  damages  for  the  injury  thereto,  as  well  as  for  that  to 
his  vessel,  occasioned  by  a  collision.- 

§  30.  In  a  late  case,  elaborately  and  learnedly  argued,  being  an 
action  brought  by  a  pawnbroker  for  an  illegal  distress  of  goods 
pledged  to  him  ;  the  plaintiff  was  held  entitled  to  recover  the 
value  of  the  goods,  not  merely  of  his  interest  in  them.  The  case 
was  distinguished  from  that  of  Johnson  v.  Slear,  15  C.  B.  (N.  S.) 
330,  where  the  plaintiff  had  a  mere  nominal  interest,  and  there- 
fore was  entitled  to  but  nominal  damages.  The  court  remark  :  "  He 
may  retain  out  of  that  the  sums  he  has  advanced  upon  them  and 
the  interest,  and  he  will  be  liable  to  hand  over  the  surplus  to  the 
respective  owners  of  the  goods."  ^  And  while,  in  general,  in 
case  of  any  lien  the  measure  of  damages  is  held  to  be  the  value 
of  such  lien  ;  *  yet  the  distinction  seems  well  established,  that 
in  trover  or  trespass,  brought  by  one  having  a  lien,  a  bailee,  or 
special  property-man,  against  the  general  owner,  the  plaintiff 
can  recover  the  value  of  his  special  property  only  ;  but,  if  the 
suit  is  against  a  stranger,  then  he  recovers  the  value  of  the  prop- 
erty and  interest  according  to  the  general  rule,  and  holds  the 
balance,  beyond  his  own  interest,  in  trust  for  the  general  owner.^ 
Thus,  in  an  action  for  the  conversion  of  sheep  held  by  the  plain- 
tiff as  estrays,  their  value  will  be  the  measure  of  damages,  in  a 
suit  against  any  person  who  cannot  show  a  superior  riglit  to  the 
possession  of  them.^ 

§  31.  But  a  different  rule  has  been  applied  in  case  of  condi- 
tional sale.  Thus  A  intrusted  to  B  goods  to  peddle,  but  to 
remain  the  property  of  A  till  sold.  B  had  a  right  to  return  them, 
and  A  to  retake  them,  at  will.  When  sold,  B  was  to  account  at 
specified  prices,  and  he  left  with  A,  as  collateral  security,  money 
equal  to  the  value  of  the  goods.  B  sold  a  portion  of  the  goods 
and  took  more  on  the  same  terms,  paying  thirty-nine  dollars,  the 

1  Laing  v.  Colder,  8  Barr,  497.  »  White  v.  Webb,  15  Conn.  502.     See 

2  Commerce,  1  Black,  574.  Horton  v.  Re3-nolds,  8  Tex.  284  ;    Sedg. 

3  Swine  r.  Leach,  18  C.  B.  (N.  S.)  478  ;  on  Damages,  509.  3d  ed. ;  Outcalt  v.  Dur- 
per  Erie,  C.  J.,  ib.  492.  ling,  1  Dutch.  443. 

4  IngersoU  ;•.   Van  Bokkelin,  7  Cow.  6  Hendricks  v.  Decker,  35  Barb.  298. 
670 ;  5  Wend.  315. 


CH.    XL]  ACTION   BY   BAILEE;    TELEGRAM.  G63 

value  of  the  last  lot,  wanting  four  dollars  and  twelve  cents,  and 
took  a  bill,  on  which  the  thirty-nine  dollars  was  credited  as  so 
much  paid.  The  goods  were  attached  as  B's  property.  Held, 
that  A  could  maintain  trespass  for  the  goods,  but  could  only 
recover  the  balance  unpaid  on  the  second  bill,  deducting  the 
thirtj'-nine  dollars  and  interest.^ 

§  32.  A  telegram,  which  by  reason  of  negligence  was  never 
delivered,  ordered  stock  to  be  purchased  on  the  day  of  its  intended 
transmission.  Held,  the  damage  by  delay  must  have  been  known, 
from  the  nature  of  the  transaction,  to  both  the  sender  and  the 
telegraph  company  ;  and  the  measure  of  damages  was  the  advance 
between  the  time  it  ought  to  have  been  purchased  and  the  pur- 
chase under  another  order  three  days  after.^ 

1  Chaffer  y.  Slierman,  2G  Verm.  237.  ^  United  States  v.  Wenger,  55  Penn. 

2G2. 


664  DAMAGES.  [book  V. 


CHAPTER    XII. 

LANDLORD    AND   TENANT;   MORTGAGE. 

1.  Action  by  reversioner  against  a  third  13.  For  distress, 

person.  18.  For  fraud. 

5.  By  lessee  against  a  third  person.  19.  By  landlord  against  tenant. 

6  a.  Bj'  a  third  person  ajrainst  lessee.  20.  Mortgage. 
7.  By  lessee  against  landlord. 

§  1.  In  many  cases,  a  reversioner  may  maintain  an  action  for 
injury  to  bis  reversionary  estate ;  and  the  damages  are  deter- 
mined by  the  peculiar  nature  of  such  an  interest.^ 

§  2.  In  an  action  on  the  case  by  a  reversioner,  the  measure  of 
damages  is  the  amount  of  injury  to  the  reversion.^ 

§  3.  In  an  action  for  damages  done  to  a  reversion,  by  cutting 
off  the  eaves  of  a  building,  and  erecting  a  wall  with  a  drip  over 
the  premises  ;  as  there  may  be  repeated  actions  for  continuing  the 
nuisance,  evidence  is  not  competent  of  diminution  in  the  saleable 
value  of  the  premises.^ 

§  3  a.  In  an  action  by  a  landlord  against  an  officer,  for  taking 
under  execution  and  removing  goods  of  his  tenant,  without  pay- 
ing the  arrear  rent  due  the  landlord,  the  measure  of  damages 
is  the  value  of  the  goods.^ 

§  4.  The  plaintiff  was  tenant  for  life,  in  possession,  of  a  long 
term,  A  having  the  remainder,  and  the  plaintiff  the  reversion 
after  the  term.  The  plaintiff  brings  an  action  against  a  stranger 
for  cutting  and  carrying  away  trees,  with  a  per  quod.  Held,  the 
entire  value  of  the  timber  might  be  recovered,  and  A  could  not 
claim  any  part  of  it,  though  he  also  might  maintain  an  action  for 
the  injury  to  his  remainder.^ 

§  4  a.  In  an  action  of  trespass  for  an  injury  inflicted  upon  the 
plainthf 's  slave,  let  on  hire,  he  was  held  entitled  to  recover  only 

1  See  Jackson  v.  Fisher,  1  M.  &  S.  234  ;         3  Bathishill  v.  Reed,  37  Eng.  L.  &  Eq. 

Tucker  v.  Newman,  11  Ad.  &   Ell.  40;  317. 

Baxter  v.  Taylor,  4  B.  &  Ad.  72;  Dobson  4  Crawford  v.  Jarrett,  2  Leigh,  630. 

V.  Blackmore,  9  Qu.  B.  991.  5  Burnett  v.  Thompson,  6  Jones,  210. 

^  Dutro  V.  Wilson,  4  Ohio  (N.  S.),  101. 


CH.    XII.]  LANDLORD   AND   TENANT.  665 

for  an  injury  to  tlie  reversion,  and  a  witness  could  not  be  asked, 
without  qualification,  his  opinion  as  to  the  damage  done  the 
slave. ^ 

§  5.  On  the  other  hand,  a  lessee  or  particular  tenant  may  often 
bring  an  action.^ 

§  6.  In  an  action  for  a  continuing  trespass,  a  tenant  can  recover 
only  for  injury  to  his  possession,  not  to  the  reversion.*^ 

^  Q  a.  Where  a  tenant  from  year  to  year  falsely  represents  to 
the  plaintiff  that  he  had  authority  from  his  landlord  to  let  in  a 
new  tenant,  and  thereby  induces  him  to  pay  100/.  for  allowing  him 
to  enter  into  possession,  and  also  to  take  the  stock  at  a  valuation  ; 
but,  the  landlord  refusing  to  accept  him  as  a  tenant,  he  is  com- 
pelled to  leave  after  a  year's  occupation:  it  being  doubtful,  on 
the  evidence,  whether  on  the  whole  the  plaintiff  had  become  a 
loser  or  gainer,  and  the  defendant  having  paid  the  first  half  of 
the  year's  rent  to  the  landlord ;  the  jury,  in  an  action  for  the 
false  representation,  may  find  for  the  plaintiff  a  sum  less  than 
the  100/.,  or  even  nominal  damages ;  and,  in  a  cross-action, 
for  half  a  year's  rent,  for  money  paid,  should  find  for  the  plain- 
tiflf.4 

§  6  6.  A  lessee  of  premises,  hired  and  used  for  a  livery  stable, 
may  maintain  an  action  against  one  who  has  laid  gas-pipes,  in  neigh- 
boring streets,  so  imperfectly,  that  gas  escapes  therefrom  through 
the  ground  and  into  the  water  of  a  well  upon  such  premises,  and 
thereby  renders  it  unfit  for  use,  and  makes  the  enjoyment  of  his 
estate  less  beneficial ;  although  the  nuisance  may  have  existed  in 
a  less  degree  when  the  premises  were  hired.  Also  for  the  incon- 
venience to  which  he  has  been  thereby  subjected,  and  expenses 
incurred  in  reasonable  and  proper  attempts  to  exclude  the  gas; 
but  not  for  injury  caused  by  allowing  his  horses  to  drink  the  water 
after  he  knew  that  it  was  corrupted  by  the  gas.^  The  fact,  that 
other  causes  have  contributed  to  render  the  water  impure  and 
unfit  for  use,  is  no  bar  to  such  action ;  but  it  may  be  shown  to 
affect  the  amount  of  damages.^ 

§  6  e.  In  an  action  l)y  the  owner  of  leasehold  premises,  for  an 
injury  thereto  without  malice,  and  from  a  cause  which  could  be 
ascertained  and  its  continuance  prevented  at  a  moderate  expense ; 

1  Johnson  v.  Lovett,  31  Ga.  187.  *  Cracknell  !•.  Davy,  1  F.  &  F.  57. 

'^  See  Attersoll    v.  Stevens,    1   Taun.         5  Sherman  v.  Fall  River,  &c.,  "2  Allen, 

182.  624. 

3  Nivin  V.  Stevens,  5  Harring.  272.  «  lb.  5  Allen,  213. 


666  DAMAGES.  [book   V. 

it  is  error  to  estimate  the  damages  at  the  difference  between  the 
value  of  tlie  lease  before  and  after  the  injury .^ 

§  7.  Actions  may  also  arise  between  the  landlord  and  tenant 
themselves. 

§  8.  In  an  action  by  a  tenant  for  taking  grain  in  the  ground 
upon  execution  against  the  landlord ;  the  measure  of  damages 
is  the  full  value  of  the  grain,  the  lease  providing  that  the  land- 
lord should  receive  his  share  of  the  grain,  to  be  delivered  in  the 
bushel,  at  the  mill,  and  no  title  therefore  vesting  in  him  till 
delivery.^ 

§  9.  Where  a  lessee  covenants  to  spend  or  consume  hay  and 
fodder  upon  the  farm :  if  the  lessor  attaches  it,  in  a  suit  by  the 
lessee  against  the  officer,  damages  cannot  be  measured  in  part  by 
the  plaintiff's  disability  thereby  caused  to  comply  with  his  cov- 
enant. The  disability  being  caused  by  the  act  of  the  lessor  him- 
self, the  latter  could  not  claim  upon  the  covenant.'^ 

§  10.  Where  a  landlord  enters  and  ejects  his  tenant  without 
right,  the  latter,  in  an  action  of  trespass  for  the  injury,  may 
recover  damages  for  his  improvements  before  expulsion  ;  as,  for 
example,  the  value  of  vegetables  and  grape-vines  which  he  had 
planted.^ 

§  11.  In  a  suit  for  the  destruction  of  a  store  occupied  by  the 
plaintiff,  whereby  he  was  put  out  of  possession  and  deprived  of 
the  use  and  benefit  of  the  store,  &c.  ;  held,  evidence  of  the 
underletting,  by  the  plaintiff,  of  parts  of  the  store,  and  the  rates 
thereof,  was  admissible,  as  tending  to  show  whether  or  not  his 
holding  was  favorable,  and  how  much  his  rights  were  really 
worth.  Also,  that  the  cost  of  repairing  certain  damages  in- 
flicted by  the  first  attempt  at  trespass,  by  which  the  plaintiff 
was  not  fully  ousted,  was  admissible  evidence,  as  a  very  obvi- 
ous measure,  of  a  principal  branch  of  damages.  Also,  that  under 
his  count,  alleging  that  he  had  been  hindered  and  prevented 
from  carrying  on  his  business,  as,  &c.,  and  his  count  that  he  had 
been  deprived  of  the  use  and  benefit  of  his  store,  the  plaintiff 
might  show  that  he  had  hired  another  store,  the  best  he  could 
obtain,  but  inferior,  as  a  stand  for  his  business,  to  that  from 

1  Terry  v.  New  York,  8  Bosw.  504.  *  Fox  v.  Brissac,  15  Cal.  223  ;  Ricketts 

2  Ream  v.  Harnish,  45  Penn.  376.  v,  Lostetter,  19  lud.  125. 

3  Clapp  V.  Thomas,  7  Allen,  188. 


CH.    XII.]  LANDLORD    AND   TENANT.  667 

which  he  had  been  ejected.  But  not  the  cost  of  repairs,  no 
tenancy  being  alleged.^ 

§  12.  A  tenant  at  will,  evicted  without  notice,  may  recover 
damages  from  the  landlord  up  to  the  time  when  the  latter  might 
have  terminated  the  tenancy,  being  the  direct  result  of  the 
expulsion,  though  the  action  is  brought  before  that  time ;  but  for 
no  longer  period.^ 

§  13.  For  a  wrongful  distress,  actual  damage  may  be  recovered, 
the  rent  being  deducted,  if  thus  paid.'^ 

§  14.  The  owner  of  sheep,  seized  and  sold  under  a  distress  for 
rent,  which  was  unlawful  because  there  were  other  goods  on  the 
premises  which  might  have  been  distrained,  is  entitled  to  recover 
the  full  value  of  the  sheep.* 

§  15.  In  trespass  for  damages  upon  the  execution  of  a  distress 
warrant,  the  plaintiff  may  recover  exemplary  damages,  and 
special  damages,  if  stated  in  the  declaration  ;  under  which,  evi- 
dence of  loss  from  the  interruption  of  business  is  proper;  also, 
the  unnecessary  or  malicious  taking  of  books  of  peculiar  value, 
and  files  of  papers  indispensable  to  such  business,  but  of  little 
value  in  the  market.  The  parties  issuing  a  distress  warrant 
may  show  in  mitigation  of  damages,  even  though  there  be  a 
written  lease,  that  they  were  recognized  by  the  tenant  as  land- 
lords. Also  the  record  of  a  judgment  for  rent  in  a  distress 
proceeding.^ 

§  IG.  Damages  may  be  recovered  for  an  excessive  distress, 
although  the  sale,  less  the  expenses,  does  not  equal  the  rent  due  ; 
as  where,  in  an  action  for  trespass  and  for  an  excessive  distress, 
it  appeared  that  the  plaintiff,  a  landlord  of  a  warehouse,  let  with 
heavy  machinery,  had  levied  a  distress  of  ten  times  the  amount 
and  locked  the  tenant  out,  and  that  the  proceeds  of  the  sale  did 
not,  less  expenses,  equal  the  rent  due.^ 

§  17.  In  case  for  selling  goods  distrained  for  rent  without 
appraisement,  the  measure  of  damages  is  the  real  value  of  the 
goods  sold,  minus  the  rent  due.'^ 

§  18.  In  an  action  by  a  lessee  against  his  lessor,  for  a  fraudu- 

1  Chandler  v.  Allison,  10  Mich.  4G0;  5  Rlicrman  v.  Dutch,  16  111.  283. 

Allison  V.  Chandler,  11  ib.  542.  6  yniith  v.  Asliforth,  u   Hurl.  &  Nor. 

-'  Ashlev  >\  Warner,  11  Gruy,  43.     See  962. 
Bartlett  ('."Orecnlcaf,  11  Grav,  98.  ^  Knight  i^.  Egerton,  12  Eng.  L.  &  Eq. 

3  iMiukle  V.  .Miles,  1  Grant,  320.  562. 

*  Keen  v.  Priest,  4  Hurl.  &  Nor.  236. 


668  DAMAGES.  [book  V. 

lent  representation  as  to  the  territorial  extent  of  the  lessor's 
right,  the  proper  measure  of  damages  is  the  sum  which  the  lessee 
in  good  faith  is  obliged  to  pay  to  a  third  person,  to  obtain  what 
the  lease  would  have  given  him  if  the  representation  had  been 
true.i 

§  18  a.  A  landlord,  who  enters  upon  his  tenant's  premises  by 
forcibly  breaking  in  a  window,  and  makes  a  distress  for  rent,  ia 
liable  for  the  full  value  of  the  goods  seized.^  (a) 

§  19.  Where  a  tenant  by  lease  holds  over,  and  is  removed  by 
execution  under  the  landlord  and  tenant  process,  he  is  liable  to 
the  landlord  in  an  action  of  tort,  alleging  forcible  entry  and 
keeping  out  the  plaintiff,  for  all  damages  caused  to  the  latter  by 
exclusion  from  the  property,  from  the  expiration  of  the  lease  to 
the  time  of  such  removal.  The  (Mass.)  Statute,  providing  the 
landlord  and  tenant  process,  also  provided,  that  the  judgment 
should  not  bar  an  action  for  trespass  on  the  premises.  "  The 
plaintiff  has  the  same  remedy  which  was  formerly  open  to  a 
demandant,  after  a  recovery  in  a  writ  of  entry ;  namely,  an 
action  of  trespass  for  mesne  profits."  Whether  a  count  upon 
the  covenants  in  the  lease  could  be  sustained,  was  considered 
a  doubtful  question.^ 

§  20.  In  an  action  by  the  mortgagee  of  a  mill-privilege  for 
flowing  the  water  back  so  as  to  render  it  useless,  the  measure  of 
damages  is  the  interest  of  the  value  of  the  privilege,  if  unob- 
structed, from  the  time  of  taking  possession.* 

§  21.  The  measure  of  damages  for  timber  cut  on  land  held  as 
security,  is  the  amount  of  injury  to  the  security,  not  the  value 
of  the  timber.^ 

§  22.  A  mortgagee  may  recover,  for  a  levy  upon  the  property 
as  the  mortgagor's,  at  least  the  amount  of  the  debt,  if  not  the 
value  of  the  property,  subject  to  restriction  in  equity .^ 

§  23.  In  an  action  by  a  second  against  a  first  mortgagee  of 
personal  property  for  conversion,  the  measure  of  damages  is  the 
amount  due  the  plaintifi'." 

1  Whitney  v.  Allaire,  1  Comst.  305.  ■»  Hatch  v.  Dwight,  17  Mass.  289. 

2  Attack  V.  Brarawell,  3  B.  &  S.  520.  5  state  v.  Weston,  17  Wis.  107. 

3  Sarsient  v.  Smith,  12  Gray,  426  ;  per  ^  Peck  v.  Inlow,  8  Dana,  192. 
Metcalf,  J.,  ib.  427.  ^  Chadwick  v.  Lamb,  29  Barb.  518. 

(o)0n  an  appeal  from  an  alderman's  jutlg-  damage  by  the  removal  and  the  value  of 
ment,  ejecting  a  tenant  under  the  (Penn.)  the  place  to  him.  Koenig  v.  Bauer,  57 
Landlord  Act  of  1863,  he  may  show  liis    Peun.  168. 


Cri.    XII.]  MORTGAGE.  6G9 

§  24.  In  trover,  by  a  second  mortgagee  against  a  stranger,  the 
measure  of  damages  is  the  value  of  tlie  property,  without  deduct- 
ing the  amount  of  the  first  mortgage.^ 

§  25.  To  a  suit  by  a  mortgagee  to  obtain  a  sale  of  the  mort- 
gaged property,  upon  a  mortgage  given  for  the  purchase-money  ; 
the  defendant  may  set  up  in  defence  a  counter-claim  for  fraud  in 
the  sale.  "  The  counter-claim  .  .  .  must  be  one  existing  in  favor 
of  a  defendant,  and  against  a  plaintiff,  between  whom  a  several 
judgment  might  be  had  in  the  action,  and  arising  out  of  the 
contract  or  transaction  set  forth  in  the  petition  as  the  founda- 
tion of  the  plaintiff' 's  claim,  or  connected  with  the  subject  of  the 
action."  - 

§  26.  In  an  action  by  the  mortgagee,  against  a  receiver  ap- 
pointed in  supplementary  proceedings,  for  seizing,  selling,  and 
converting  mortgaged  chattels,  the  damages  should  be  assessed 
as  in  an  action  on  the  case  for  an  injury  to  the  plaintiff's  rever- 
sionary interest,  by  confining  the  damages  to  the  loss  he  has 
sustained  by  the  dispersion  of  his  property  among  the  several 
purchasers.'^ 

1  White  V.  Webb,  15  Conn.  502.  3  Manning  v.  Monaglian,  28  N.  Y.  (1 

'i  Allen  V.  Shackelton,  15  Ohio  St.  145.     Tiffa.)  585. 


670  DAMAGES.  [book   V. 


CHAPTER  XIII. 

DAMAGES    FOR   THE   TAKING    OR   CONVERSION   OF   NOTES   AND    OTHER 
PAPER    SECURITIES. 

1.  Conversion,  &c.,  of  negotiable  securities.         8.  Refusal  to  transfer  stock. 
5.  Neglect  in  tlie  collection  of  notes,  &c.  9.  Miscellaneous  cases. 

§  1.  Questions  have  often  arisen,  as  to  the  measure  of  dam- 
ages for  wrongful  appropriation  of  notes  and  other  papers,  which 
derive  their  value  from  being  evidences  of  property. 

§  2.  In  an  action  for  unlawful  appropriation  of  a  paper  security, 
the  measure  of  damages  is  the  amount  of  the  debt  of  which  the 
paper  is  the  evidence.^  Thus,  in  a  suit  for  conversion  of  a  prom- 
issoiy  note,  in  the  absence  of  proof,  the  presumption  is,  that  the 
instrument  is  worth  the  sum  payable  on  it.-  (a)  The  measure  of 
damages  is  not  the  amount  of  property  in  the  hands  of  the  maker 
liable  to  execution:  but,  if  the  defendant  offer  evidence  that  the 
maker  is  in  debt  and  unable  to  pay  his  debts,  the  plaintiff  may 
then  prove  him  to  be  an  honest  man,  who  would  pay  when  he 
should  be  able,  and  that  he  was  working  for  the  plaintiff,  and 
expected  to  be  able  to  pay  ;  and  may  thereupon  recover  the 
amount  of  the  note.^  It  is  competent  for  the  defendant,  in  an 
action  for  conversion  of  a  note,  to  prove  the  insolvency  of  the 
maker,  and  thereby  lessen  the  damages ;  but  the  presumption  is 
that  he  is  solvent.  The  proper  question  to  a  witness,  is,  "  Are 
the  parties  to  the  note  solvent,  and  able  to  pay  their  debts?"* 

§  2  a.  Where  the  payee  of  a  note  more  than  six  years  old 
pledges  it  for  a  debt,  which  he  pays,  and  demands  the  note  ;  in 

1  Eoraig  V.  Romig,  2  Rawle,  241.  ^  Rose  v.  Lewis,  10  Mich.  483. 

2  Menkens  y.  Menkens,  28  Mis.  252;  ■»  Potter  v.  Merchants',  28  N.  Y.  (1 
Ingalls  V.  Lord,  1   Cow.   240;  Latliam  v.     Titlk.)  G41. 

Brown,    16    Iowa,   118 ;    Potter   v.   Mer- 
chants', 28  N.  Y.  (1  Tifla.)  641. 

(o)  The  measure  is  the  same  in  an  action    trusted  to  them  by  tlie  plaintiff  was  lost, 
of  case  against  an  express  company  for    American  v.  Parsons,  44  111.  312. 
negligence,   through    which    a    note    in- 


CH.    XIII.]  TAKING  OR  CONVERSION    OF   NOTES,    ETC.  G71 

an  action  against  the  pledgee,  for  not  returning  the  note,  he  may 
recover  its  full  amount,  no  inability  of  the  promiser  to  pay  it 
being  shown,  and  although  the  defendant  files  in  court  an  obliga- 
tion to  indemnify  the  plaintiff  against  any  act  done  or  to  be  done 
by  the  defendant  in  relation  to  the  note.' 

§  3.  Where  the  transfer  of  a  note  by  the  payee,  who  was  an 
infant  and  w  feme  covert,  to  the  maker,  before  it  fell  due,  was  void  ; 
held,  in  an  action,  by  the  administrator  of  the  payee,  against  the 
maker,  for  conversion  of  the  note,  the  jury  should  assess  dam- 
ages, by  deducting  from  the  amount  of  the  note  and  interest  all 
the  interest  that  had  been  paid  on  the  note  to  the  payee,  and  the 
value  of  all  necessaries  furnished  by  the  maker  to  her,  and  money 
advanced  by  him  and  applied  by  her  to  the  procurement  of 
necessaries.^ 

§  3  a.  An  officer  who,  upon  arresting  a  person  charged  with 
larceny,  takes  from  him  other  property  than  that  alleged  to  have 
been  stolen,  and  refuses  to  give  it  up  on  demand,  and  retains  it  for 
two  years  after  the  person  arrested  has  been  convicted,  is  liable  in 
damages ;  and,  if  the  property  so  taken  is  a  promissory  note,  the 
maker  of  which  becomes  insolvent  before  the  offer  to  restore  it, 
the  measure  of  damages  is  the  value  of  the  note  at  the  time  of 
the  conversion,  and  interest  thereafter.^ 

§  4.  Deposit  of  notes  by  the  plaintiff  with  the  defendant,  as 
collateral  security  for  the  discharge  of  certain  mortgages ;  one 
being  that  of  the  defendant  himself,  the  others  notes  of  A,  given 
to  the  plaintiff  in  payment  of  laud,  which  the  latter  had  conveyed 
to  him,  by  a  deed  conditioned  to  be  valid  upon  payment  of  the 
notes.  A  quitclaimed  the  land  to  the  defendant,  who  agreed  with 
him  and  the  plaintiff  to  pay  the  notes.  Afterwards,  the  plaintiff 
deposited  the  notes  as  security,  and  conveyed  the  land  to  the 
defendant,  who  subsequently,  with  the  plaintiff's  consent,  con- 
veyed it  to  A.  Held,  after  the  plaintiff  had  so  removed  the 
mortgages  as  to  be  entitled  to  have  the  notes  back,  the  rule 
of  damages  in  trover  for  them  was  the  full  amount  due  upon 
them.^ 

§  4  a.  In  a  leading  case,  already  cited  in  another  connection, 
April  29,  178G,  the  plaintiff's  intestate.  A,  deposited  with  the 
defendant   a   depreciation   note,   nominally   worth    $2G29,  to  be 

1  Thomas  v.  Waterman,  7  Met.  227.  3  Ring  v.  Ilam,  6  Allen,  298. 

2  TUUnghast  v.  Ilolbrook,  7  K.  I.  230.  *  Kobbins  i-.  Packard,  31  Verm.  570. 


672  DAMAGES.  [book  V. 

delivered  to  A  on  payment  of  $600  and  interest.  In  1788,  the 
defendant  sold  the  note  for  the  best  price  he  could  get,  but  less 
than  the  debt.  In  1791  or  1792  A  died,  and  in  1799  the 
plaintiff,  as  his  administrator,  went  to  the  defendant's  house  to 
redeem,  but  was  prevented  by  his  illness  from  seeing  him.  In 
an  action  of  assumpsit,  held,  the  measure  of  damages  was  the 
value  of  the  certificate  at  the  time  last  mentioned.^ 

§  5.  The  rule  of  damages,  in  an  action  by  an  indorsee  and 
owner  of  a  promissory  note  against  a  justice  or  his  sureties,  for 
negligence,  whereby  the  collection  of  the  note  intrusted  to  the 
justice  for  collection  Avas  lost,  is  the  actual  loss  occasioned  by 
such  neglect.2 

§  5  a.  In  an  action  against  the  seller  of  a  note  which  has  been 
paid,  for  knowingly  misrepresenting  that  it  was  still  due,  the 
measure  of  damages  is  the  full  account  of  the  note.^ 

§  6.  The  payee  of  a  note  left  it  for  collection  with  a  banking 
firm  in  A,  who  transmitted  it  to  their  correspondents  at  B,  the 
residence  of  the  maker,  where  it  was  protested  by  them  for  non- 
payment, but  the  indorser  was  not  notified  by  them.  The  payee 
afterwards  transferred  the  note,  and  after  divers  negotiations  it 
came  again  into  his  hands,  when  he  sued  the  banking  firm  for 
negligence.  Held,  the  measure  of  damages  was  prima  facie  the 
face  of  the  note,  and  was  not  changed  by  the  fact  that  the  plain- 
tiff bought  it  at  a  discount.  Also,  that  the  plaintiff  must  make 
out  the  insolvency  of  the  maker,  and  the  solvency  of  the  indorser  ; 
that  the  defendants  might  mitigate  damages  by  showing  the  sol- 
vency of  the  maker,  insolvency  of  the  indorser,  partial  or  entire 
security  for  the  note,  or  any  other  fact  that  would  lessen  the  actual 
loss  to  the  plaintiff,  which  was  the  fact  to  be  arrived  at  by  the 
jury.  But  the  plaintiff  might  show  solvency  of  the  indorser,  not 
only  on  the  day  of  maturity,  but  on  any  day  between  that  and 
the  commencement  of  the  action;  and  the  defendant  could  show 
only  such  facts  as  the  indorser  could  have  availed  himself  of  in 
defence  to  a  suit  against  him,  or  as  would  have  rendered  wholly 
or  partially  valueless  a  judgment  against  him.* 

§  7.  In  an  action  against  a  banker  for  neglect  to  demand  pay- 
ment of  a  note  and  charge  the  indorser ;  the  instruction  to  the 

^  Cortelyou  v.  Lansing,  2  Caines,  Cas.  ^  Sibley  v.  Hulbert,  15  Gray,  509. 

in  Er.  200.  4  Borup  v.  Xininger,  5  Min.  523. 

2  Dehn  v.  Heekman,  12  Ohio  (N.  S.), 
181. 


CII.    XIII.]  TAKING   OR    CONVERSION    OP   NOTES,    ETC.  673 

jury,  as  to  damages,  should  Iiave  reference  to  the  pecuniary  means 
of  the  indorser.  The  worth  of  such  a  claim  against  "such  a 
man  as  the  indorser  was  shown  to  be  "  is  not  the  proper  measure 
of  damages.  This  is  primd  facie  the  amount  of  the  note,  but  it 
may  be  shown,  in  mitigation,  that  the  indorser  was  insolvent,  or 
not  worth  enough  to  pay  the  judgment,  and  entire  insolvency 
is  a  defence  to  the  action.  The  court  significantly  remarked  : 
"  Fidda  may  be  a  very  mean  man,  and  yet  the  claim  be  collect- 
ible against  him.  The  rule  laid  down  by  the  judge  admitted  of 
the  construction,  that  Fulda,  being  contemptible,  denying  him- 
self when  called  on  for  the  payment  of  the  drafts,  the  jury  miglit 
find  that  nothing  could  be  collected  from  him."  ^ 

§  8.  Questions  have  arisen  as  to  the  measure  of  damages  for 
wrongfully  refusing  to  transfer  stock,  (a)  In  Massachusetts, 
wdiere  an  insurance  company,  bound  to  enter  on  its  books  a  trans- 
fer of  assigned  shares,  refused  to  enter  such  transfer,  and  attached 
and  sold  them  as  the  property  of  the  assignor ;  the  measure  of 
damages,  in  a  suit  by  the  assignee,  was  held  to  be  the  value  of 
the  shares  at  the  time  of  refusal,  with  interest.  This  decision, 
however,  was  not  the  unanimous  opinion  of  the  court,  and  was 
admitted  not  to  be  in  conformity  with  the  rule  in  New  York.^ 
So  in  New  Hampshire,  where,  upon  a  sale  on  execution  of  shares 
in  a  corporation,  a  certificate  is  demanded  of  the  corporation  by 
the  purchaser,  and  refused ;  the  measure  of  damages  is  the  value 
of  the  stock  at  the  time  of  the  demand,  with  interest,  and  not  the 
value  at  the  time  of  trial,  or  at  any  intermediate  period.^  But  in 
Pennsylvania,  for  withholding  bank  stock,  if  the  consideration  has 
been  paid,  the  measure  of  damages  is  the  highest  market  value 
between  the  breach  and  the  trial,  with  the  bonus  and  intermediate 
dividends.  If  the  consideration  has  not  been  paid,  the  difference 
between  it  and  the  value,  with  the  difterence  between  the  interest 
on  the  consideration  and  the  dividends.'* 

§  9.  In  trover  for  Uast  India  Company  warrants  for  cotton, 
which  had  risen,  from  sixpence  per  pound  at  the  time  of  conver- 
sion, to  ten  and  a  half  pence  ;  it  was  held,  that  the  jury  in  their 

1  Bridire  v.  Mason,  45  Barb.  37 ;  per  ^  Pinkerton  v.  Manchester,  &c.,  42 
Leonard,  J.,  ib.  30.  N.  11.  424. 

2  Sai  .rent  v.  Tlie  Franklin,  &c.,  8  Pick.         *  Bank,  &c.  v.  Reene,  20  Penn.  143. 
90  ;  ace.  Gray  v.  Portland,  &c.,  3  Mass. 

304.     See  Clark  v.  Pinney,  7  Cow.  681. 

(a)  See  Jarvis  v.  Rogers,  15  Mass.  389,  a  case  relating  to  150,000  acres  of  Missis- 
sippi scrip. 

43 


674  DAMAGES.  [book   V. 

discretion  miglit  measure  the  damages  by  tlie  value  at  the  time  of 
conversion  or  any  subsequent  time.^ 

§  9  a.  In  an  action  against  an  association  for  refusing  to  permit 
a  transfer  of  stock,  the  measure  of  damages  is  its  actual  value  at 
the  time  of  the  refusal.^  In  an  action  for  fraudulent  representa- 
tions in  regard  to  stock  of  a  corporation,  sold,  the  rule  of  dam- 
ages is  the  difference  between  the  real  value  at  the  time  of  the 
sale,  and  what  its  value  would  have  been  had  the  representation 
been  true.^ 

§  9  6.  Upon  a  bill  in  equity  to  compel  the  transfer  of  stock,  on 
a  decree  for  the  plaintiff,  and  inability  of  the  defendant  to  transfer 
it ;  the  plaintiff  is  entitled  to  the  value  of  the  stock  when  the 
decree  was  rendered.* 

§  9  c.  If  the  transfer  of  a  certificate  of  stock  is  void,  so  as  to 
render  the  holder  liable  in  trover  for  a  sale  of  the  stock ;  the 
shares  are  to  be  considered  as  converted,  and  not  merely  the 
paper  certificate,  so  as  to  render  him  liable  only  for  nominal 
damages.^ 

§  9  d.  In  an  action  for  conversion  of  stock,  the  measure  of  dam- 
ages should  be  the  highest  value  of  the  stock  from  the  time  of 
conversion  to  the  end  of  the  trial,  if  reasonable  diligence  in  the 
prosecution  of  the  action  is  exercised.^ 

§  9  e.  In  a  suit  for  the  conversion  by  a  broker  of  stock  on  his 
hands,  the  measure  of  damages  will  be  the  market  value  of  the 
stock  at  the  time  of  conversion.'^ 

§  9/.  The  measure  of  damages  in  an  action  of  tort,  whether 
considered  as  in  trover  or  case,  brought  by  the  pledgor  of  stock 
against  the  pledgee,  for  selling  it  at  private  sale,  is  in  general  the 
actual  value  at  the  time  of  such  sale,  deducting  the  amount  of 
the  debt.8 

§  9  gr.  Where  one  purchased,  at  a  sale  for  non-payment  of 
assessments,  shares  in  a  corporation  held  by  him  as  collateral ;  he 
is  liable,  in  trover,  for  the  value  of  the  shares,  at  the  time  of  the 
sale,  for  the  dividends  received  by  him,  and  interest,  less  the 
amount  of  the  assessments  and  the  expenses  of  sale. ^ 

1  Greening  v.  Wilkinson,  1   Car.  &  P.  ^  Morton  v.  Preston,  18  Mich.  60. 

625  (substantially   overruling  Mercer  v.  6  Koniaine  v.  Van  Allen,  26  N.  Y.  (12 

Jones,  3  Camp.  476).  Smitli)  oO'j. 

^  German  v.  Sendmeyer,  50  Penn.  67.  ''  Parsons  v.  Martin,  11  Gray,  111. 

3  Bowman  v.  Parker,  40  Vt.  410.  8  Baltimore  v.  Dalrymple,  25  Md.  269. 

*  O'Meara  v.  North  American,  2  Nev.  9  Freeman  v.  Harwood,  49  Maine,  195. 
112. 


CH.    XIII.]  TAKING    OR    CONVERSION    OF   NOTES,   ETC.  675 

§  9  h.  Where  tlie  bailee  of  specific  gold  coins,  to  be  redelivered 
in  specie,  sells  them  for  a  premium,  and  fiiils  to  redeliver  them  on 
demand  ;  he  is  answerable  for  the  amount  which  he  has  realized 
by  the  conversion.  A  refusal  to  redeliver  is  evidence  of  a  con- 
version, and  will  justify  the  inference  that  the  conversion  was  at 
the  usual  premium  for  such  coins.^ 

§  9  i.  An  action  was  brought  against  a  real-estate  broker,  for 
not  paying  over  to  the  plaintiff  or  his  agents  the  purchase-money 
(Confederate  treasury  notes)  of  land  of  the  plaintiff's  which  the 
defendant  had  soUl  for  him;  the  money  having  been  retained  by 
the  defendant,  without  giving  notice  that  he  had  received  it, 
until  it  became  valueless.  The  declaration  contained  no  specific 
allegation  of  fraud  or  collusion,  nor  of  special  damages.  Held, 
the  measure  of  damages  was  the  value  of  the  currency  at  the 
time  it  was  received  by  the  defendant,  with  interest.^ 

§  10.  In  case  of  the  conversion  o{  title-deeds  or  other  evidences 
of  title  to  real  property  ;  if  the  title  is  not  afiected,  and  the  injury 
occurred  from  mistake,  slight  negligence,  or  omission,  the  measure 
of  damages  is  the  actual  loss,  and  the  trouble  and  expense  of 
establishing  and  perpetuating  the  title  by  law.  But,  if  the  act  is 
wanton  or  malicious,  punitive  damages  may  be  given  ;  and,  if  the 
defendant  vexatiously  withhold  the  instrument,  to  the  lull  value 
of  the  land  or  more.^ 

§  11.  Where  the  defendant  had  falsely  represented  to  the  plain- 
tiff, his  principal,  that  he  had  effected  an  insurance ;  held,  the 
former  was  bound  by  this  representation,  and,  in  trover  for  the 
policy,  the  plaintiff's  loss  being  proved,  the  measure  of  damages 
was  the  same  as  if  express  proof  had  been  given  of  the  insur- 
ance."* 

1  Bank  r.  Burton,  27  Ind.  426.  *  Harding:  v.  Carter,  Park  on  Ins.  4 ; 

2  WitsL'll  V.  Hiuj^s,  14  Ricli.  L.  186.  Scc^!,^  on   Dam.  3d  ed.  517.     See  Kolme 

3  Mowry  v.  ^A'uod,  12  Wis.  413.  v.  The  Insurance  Co.,  &e.,  1  Wasli.  C.  03. 


676  '  DAMAGES.  [book   V. 


CHAPTER  XIV. 


WRONGS    CONNECTED   WITH   SALE. 


1.  General  remarks.  3.  Conditional  sale. 

2.  Bu\-er  against  seller;  refusal  to  deliver,  6.   Fraud, 
conversion,  &.c. 

§  1.  Although  the  sale  of  property  is  itself  a  contract,  yet  the 
question  of  damages  often  arises  from  some  wrong  connected  with 
such  sale.i 

§  2,  Notwithstanding  the  title  to  goods  may  have  passed  from 
seller  to  buyer,  yet,  if  the  former  will  not  surrender  them,  the 
latter  may  in  a  special  action  on  the  case  recover  the  difference 
between  the  price  agreed  on  and  the  market  value  of  the  goods  at 
the  time  and  place  when  and  where  they  should  have  been  deliv- 
ered.2  So,  in  trover  for  goods  bought  by  the  plaintiff  of  the 
defendant  for  an  agreed  price,  the  value,  not  the  price,  is  the 
measure  of  damages.^  So  A,  having  bought  sheep  on  credit,  left 
them  in  the  custody  of  the  vendor.  Without  any  default  on  the 
part  of  A,  though  the  price  had  not  been  paid  or  tendered,  the 
vendor  resold  them.  Held,  a  conversion,  and  A  was  entitled  to 
maintain  trover.  Also,  that  the  measure  of  damage  was  not  the 
value  of  the  sheep,  but  the  loss  sustained  by  A  by  not  having 
them  delivered  to  him  at  the  price  agreed  on.* 

§  3.  In  trover  by  assignees  of  a  bankrupt,  for  goods  purchased 
by  him  under  an  agreement  that  the  purchase-money  be  paid  by 
instalments,  and  an  assignment  of  the  property  executed  when 
the  whole  had  been  paid,  with  power  to  re-enter  upon  default  in 
payment ;  they  are  entitled  to  recover  the  full  value  of  such 
goods  against  a  mere   wrong-doer,  notwithstanding  default  had 

1  See  Kent  v.  Ginter,  23  Ind.  1  ;  Wey-         ^  Stevens  v.  Dow,  2  Hill,  132. 
mouth  V.  C.  &  N.,  &c.,  17  Wis.  550.  *  Chinery  i-.  Viall,  5  Hurl.  &  Nor.  288. 

2  Biggers  v.  Pace,  5  Geo.  171. 


CH.    XIV.]  WRONGS    CONNECTED    WITH    SALE,    ETC.  677 

been  made  in  some  of  the  instalments,  and  the  vendor  had  to  that 
extent  an  interest  in  the  goods. ^ 

§  4.  Where  goods  were  sold  at  an  agreed  price,  to  be  paid  in 
notes,  and  were  delivered  conditionally ;  the  condition  not  being 
performed,  the  seller  brought  trover  for  the  goods.  Held,  the 
price  was  not  the  measure  of  damages,  but  the  defendant  might 
offer  evidence  that  the  price  exceeded  the  value.^ 

§  5.  The  plaintiff  sold  to  A,  in  February,  a  pair  of  oxen,  for 
$120,  to  be  paid  for  in  the  following  September, —  "to  remain 
the  property  of"  (the  plaintiff)  "until  paid  for."  A,  having 
sent  $G0  to  the  plaintiff,  in  part-payment,  sold  the  oxen  to  the 
defendant,  who  converted  them  to  his  own  use.  Held,  in  trover, 
the  measure  of  damages  was  the  value  of  the  oxen  at  the  time  and 
place  of  conversion,  not  deducting  the  amount  of  the  payment. 
The  court  remark  :  "  He  might  sell  the  same,  and  the  purchaser 
would  acquire  a  perfect  title.  The  oxen  might  be  attached  as 
his,  and  the  attachment  would  be  held  valid.  The  plaintiff  might 
replevy  them  from  any  person  in  whose  possession  they  might  be 
found.  His  rights  are  not  impaired  by  any  attempt  on  the  part 
of  some  one  to  purchase  on  conditions  which  have  never  been 
complied  with.  The  vendee  has  no  attachable  interest  in  the 
property  or  its  increase,  until  performance  of  the  condition.  .  .  . 
If  the  plaintiff  had  resumed  possession  .  .  .  for  non-performance 
...  he  would  have  been  under  no  legal  obligation  to  repay  the 
sums  received  in  part  payment."  The  court  remark  upon  the 
points  of  distinction  from  this  case  of  other  cases,  involving  a 
return  of  the  property,  special  property  of  the  plaintiff,  a  lien  of 
the  defendant,  or  an  increase  of  value  by  loorh  done  on  the  prop- 
erty ;  in  all  which  cases  a  deduction  is  allowed  from  the  dam- 
ages.-'^ 

§  5  a.  In  case  of  false  representation  by  a  vendor,  the  measure 
of  damages  is  the  difference  between  the  true  and  the  repre- 
sented value.'* 

§  6.  A  purchaser  may  plead  fraud  to  an  action  for  tlic  price, 
and  thereby  defeat  the  action  or  reduce  the  damages.  Fraud  may 
also  be  set  up  as  a  counter-claim,  and  any  excess  of  damages  there- 
upon recovered  by  the  defendant.^ 

»  turner  v.  Har.k-astle,  11  C.  P.  (X.  S.)  «  Brown  v.  Ilavnes,  52  Maine,  578 ;  per 

683 ;  31  L.  J.,  C.  V.  193.  Apj.leton,  C  J.  ib.  581. 

2  Stevens  v.  Low,  2  Hill,  132.  ■«  Molicrlv  v.  Alexander,  19  Iowa,  162. 

5  Love  i-.'Okliiani,  22  Ind.  51. 


678  DAMAGES.  [book  V. 

§  7.  Where  a  cow  was  sold  by  the  defendant  to  the  plaintifif 
with  the  fiilse  and  fraudulent  representation  that  she  was  free 
from  infectious  disease,  and  was  placed  with  others,  which  took 
and  died  of  the  disease;  held,  the  plaintiff  might  recover,  as 
damages,  the  value  of  all  the  cows.^ 

1  MuUett  V.  Mason,  Law  Rep.  1  C.  P.  559:  Amn.  Law  Rev.,  Jan.  1867,  p.  294. 


CH.    XV.]         INTEREST,    COSTS,    COUNSEL-FEES,    EXPENSES.  679 


CHAPTER    XV. 

INTEREST,    COSTS,    COUNSEL-FEES,   EXPENSES. 
1.  Interest.  3.  Costs  and  expenses. 

§  1.  It  is  l)eld  tliat,  in  actions  for  tort,  the  jury  may  in  their 
discretion  calculate  interest  on  the  damage  actually  sustained,  and 
add  it  to  their  verdict. ^  But  when,  in  an  action  for  unliquidated 
damages,  interest  may  be  considered  by  the  jury,  it  is  not  recov- 
erable as  such  in  addition  to  the  sum  found  due,  but  must  enter 
into  and  form  part  of  the  estimated  amount.^ 

§  2.  A  late  case  in  New  York  gives  the  following  view  of  deci- 
sions upon  the  subject  in  that  State  :  "  It  has  for  a  long  time  been 
a  controverted  question  whether  in  actions  of  tort  interest  could 
be  given  as  matter  of  right,  in  addition  to  the  damages.  In  Dana  v. 
Fiedler  (2  Kern.  42),  it  was  held,  that,  in  an  action  for  damages 
on  a  breach  of  a  contract,  the  plaintiff  was  entitled  to  interest 
on  the  damages  awarded  for  the  breach  from  that  time  until 
the  trial.  So  in  actions  of  trespass  for  taking  the  plaintiff's  prop- 
erty (I  John.  136;  1  Baldwin,  318.  And  in  trover  (4  Cowen) 
58 ;  7  Wend.  354),  the  plaintiff  has  been  considered  as  entitled 
to  interest  on  the  value  of  the  property  taken  or  converted,  from 
the  time  of  conversion  ;  but  this  rule  has  not,  as  far  as  I  am  aware 
of,  been  applied  to  other  classes  of  torts,  where  there  was  no  prop- 
erty taken  or  converted,  and  where  tlie  question  was  one  of  dam- 
ages purely,  unliquidated  and  to  be  assessed  by  a  jury.  Tiie  rule 
in  such  cases  has  been  to  leave  the  question  to  the  jury,  not  only 
as  to  the  amount  of  damages,  but  as  to  the  question  of  interest. 
This  rule  was  recognized  in  "Walrath  v.  Redfield  (18  N.  Y.  Rep. 

1  Hogg  V.  Zanesville,  &c.,  5  Ham.  410 ;  358.     But  see  Green  v.  Garcia,  3  La.  An. 

Derby   r.   Gallup,  5   Min.   11'.);    Beals   v.  702. 

Guernsey,  8  Jolin.  446  ;  Hyde  r.  Stone,  7  •*  Dozier  r.  Jerman,  30  Mis.  216. 

Wend.  354  ;  Handley  v.  Chambers,  1  Litt. 


680  DAMAGES.  [book   V. 

462).  Seidell,  J.,  says  :  '  The  jury  were  not  instructed  to  allow 
interest,  but  its  allowance  was  submitted  to  their  discretion. 
There  was  no  error  in  this.  In  general,  in  actions  ex  delicto,  it  is 
in  the  discretion  of  the  jury  wliether  to  allow  interest  by  way  of 
damages  or  not.'  This  was  so  held  in  an  action  against  a  carrier. 
(Richmond  v.  Bronson,  5  Denio,  55  ;  Lakeman  v.  Grinnell,  5 
Bosw.  625)."  1 

§  2  a.  In  an  action  of  debt  upon  a  sheriff's  bond  for  abuse  of 
process  in  not  complj'ing  with  the  appraisement  act,  the  grava- 
men being  trespass  by  illegal  sale,  the  jury  may  in  their  discre- 
tion allow  interest  upon  the  value  of  the  property  from  the  time 
of  sale.  But  the  court  cannot  properly  suggest  to  the  jury  to 
do  S0.2 

§  3.  The  jury,  in  estimating  damages,  have  no  right  to  take 
into  their  consideration  what  amount  will  carry  costs,  the  question 
of  costs  being  with  the  judge.  Hence  the  counsel  for  the  plaintiff 
has  no  right  to  tell  the  jury,  that,  unless  they  should  give  damages 
for  51.  5s.,  in  all  probability  the  costs  would  be  thrown  upon  the 
plaintiff.^ 

§  3  a.  Under  a  special  count,  the  plaintiff  may  recover  the 
actual  damage  caused  to  him  by  the  defendant's  wrongful  con- 
duct in  respect  to  the  property,  but  the  expenses  of  the  suit 
beyond  the  taxable  costs  cannot  be  embraced  as  such  dam- 
age.^ 

§  4.  In  an  action  for  fraud  in  the  sale  of  a  horse,  the  judge 
instructed  the  jury,  that,  in  determining  the  damages,  if  they 
found  a  gross  and  wilful  fraud,  they  were  at  liberty  and  it  would 
be  proper  for  them  to  give  exemplary  or  vindictive  damages, 
increased  by  taking  into  consideration  the  plaintiff's  expenses  in 
the  suit.  Held,  the  jury  might  have  understood  that  they  might 
properly  add  to  the  damages  the  entire  amount  of  the  plaintiff's 
expenses,  without  regard  to  the  taxable  costs  to  be  recovered  by 
him,  and,  since  the  verdict  much  exceeded  the  value  of  the  horse, 
that  they  probably  did  so  understand  the  charge ;  and  a  new  trial 
was  granted,  unless  the  plaintiff  would  remit  the  taxable  costs,  or 

1  Per  Ingraliam.  P.  J.,  Black  v.  Cam-  *  Park  v.  McDaniels,  87  Verm.  594 ; 

den,  &c.,  45  Barb.  41.  Warren  v.  Cole,  15  Mich.  265;  New  Or- 

-  Crow  V.  State,  23  Ark.  684.  leans  v.  Moore,  40  Miss.  39. 

3  Poolo  V.  Whitcombe,  3  Post.  &  Fin. 
79.     See  Day  v.  Woodworth,  13  How.  363. 


CH.    XV.]  INTEREST,    COSTS,    COUNSEL-FEES,    EXPENSES.  681 

such  part  of  the  damages  as  would  be  equal  to  tliera.^  So,  in  an 
action  of  trespass,  if  the  wrongful  act  is  neither  wanton  nor 
malicious,  the  jury  are  not  at  liberty  to  give  more  than  actual 
,dan)ages  ;  nor  to  take  into  consideration  the  expenses  incurred  by 
the  plaintiff  in  the  prosecution  of  his  suit.  Such  expenses  are  no 
part  of  the  natural  and  proximate  consequences  of  the  injury, 
and  cannot  be  made  the  subject  of  averment  in  the  declaration,  or 
of  proof  on  the  trial.  A  jury  is  allowed  to  take  them  into  con- 
sideration in  cases  of  wanton  and  malicious  injury,  as  a  known 
and  actual  incident  of  the  injury,  although  not  its  natural  con- 
sequence, only  because  the  law  furnishes  no  definite  rule  of 
damages  in  such  a  case.  But  where  the  injury  is  not  malicious 
or  wanton,  the  law  furnishes  a  definite  rule  of  damages.-  So,  in 
an  action  for  conversion,  the  plaintiff  cannot  recover  as  special 
damages  the  costs  and  expenses  of  an  unsuccessful  suit  against  a 
person  to  whom  the  defendant  had  delivered  the  property .^  So  it  is 
held  that  a  counsel-fee,  which  the  plaintiff  may  be  required  to  pay 
his  counsel  in  the  cause,  is  not  to  be  allowed  by  the  jury  in  estimat- 
ing the  plaintiff's  damages.'*  So  the  plaintiff,  being  in  treaty 
with  C  for  the  purchase  of  the  good- will  of  a  business,  was  referred 
to  B  for  the  particulars  of  the  returns  of  such  business.  The 
defendant,  whom  the  plaintiff  sent  to  B  for  such  particulars,  repre- 
sented to  the  plaintiff  that  B  had  told  him  that  the  returns  were 
of  a  certain  value,  whereupon  the  plaintiff  concluded  his  purchase. 
The  value  being  afterwards  found  to  be  much  less,  the  plaintiff, 
without  further  inquiry,  sued  C  for  a  false  representation,  but 
failed,  on  tiie  ground  that  no  such  representation  had  been  made 
by  either  B  or  C.  In  an  action  against  the  defendant  for  false 
representation,  held,  that  the  plaintiff'  was  not  entitled  to  recover, 
as  damages,  the  costs  of  the  action  against  C,  inasmuch  as  they 
were  not  the  natural  and  proximate  consequence  of  such  false 
representation.^  So  A,  professing  to  have  authority  from  the 
owners  of  certain  premises,  granted  a  parol  lease  of  them  for 
seven  years  to  B ;  and  let  him  into  possession.  The  owners^ 
disavowing  the  authority  of  A,  demanded  possession  from  B  ; 
and,  on  his  refusal,  brought  an  ejectment  against  him.     B,  relying 

1  Piatt  V.  Brown,  30  Conn.  336.  *  Welch  v.  Northeastern,  &c.,  12  Rich. 

2  St.  Peter's,  &c.  v.  Beach,  26  Conn.  290.     See  Lincoln,  &c.,  23  Wend.  425. 
355.  5  Kichardson  v.  Dunn,  8  C.  B.  (N.  S.) 

3  Wilson  V.  Mathews,  24  Barb.  295.  655. 


682  DAMAGES.  [book   V. 

on  a  statement  of  A,  tliat  lie  had  authority,  and  that  the  eject- 
ment would  not  be  persevered  in,  and  also  on  the  advice  of  his 
own  attorney,  defended  the  ejectment,  but  unsuccessfully,  and 
was  turned  out.  B  havinj^  brought  an  action  against  A  for  this 
false  assumption  of  authority,  the  jury  found  that  A  had  acted 
bond  fide  and  without  fraud,  and  through  a  misappreliension  that 
he  had  authority.  Held,  B  was  not  entitled  to  recover  the 
costs  incurred  in  defending  the  ejectment.^  (a) 

§  5.  But  other  cases  hold  a  somewhat  different  doctrine. 
Exemplary  damages  may  include  reasonable  counsel-fees.^  Where 
malice  is  the  gist  of  the  action,  and  vindictive  damages  are  recov- 
erable, necessary  and  reasonable  fees,  paid  to  counsel  in  defending 
against  the  wrongful  act  of  the  defendant,  may  be  proved  and 
considered  by  the  jury  in  the  assessment  of  damages.^  So  the 
jury,  in  a  suit  for  fraud, may  take  into  consideration  the  expenses 
of  prosecuting  the  suit.*  So,  in  trover  by  a  party  to  a  bailment, 
against  a  wrongful  taker,  he  may  recover  the  costs  of  a  previous 
suit  against  himself.^  So  damages,  if  duly  claimed  in  the  declara- 
tion, are  recoverable  by  the  bailor,  for  time  spent,  and  expenses, 
in  searching  for  property  wrongfully  taken  from  the  possession  of 
the  bailee.^  So,  in  an  action  for  negligence,  the  jury  cannot  take 
into  consideration  the  probable  expenses  of  conducting  the  suit, 
beyond  the  taxable  costs  and  counsel-fees.'^  So  in  an  action  for 
flooding  the  plaintiff's  land,  a  compensation  to  the  plaintiff,  for  his 
trouble  and  expense  in  conducting  his  suit  and  establishing  his 
right  at  law,  is  not  recoverable.^  So  in  an  action  for  a  nuisance 
upon  the  plaintiff's  land,  caused  by  the  discharge  of  impure 
water,  from  the  defendant's  brewery,  into  the  plaintiff's  clay-pits, 
through  a  drain  dug  by  the  defendant ;  the  water  having  been 
complained  of  as  a  nuisance,  and  the  Board  of  Health  having 
ordered  that  one  of  the  pits  be  filled  up  by  the  plaintiff;  held, 
the  expense  of  this  operation  should  be  included  in  the  damages. 

1  Pow  V.  Davis,  1  Best  &  Smith,  220.  5  Pritchard  v.  Blick.  1  F.  &  F.  404. 

2  Roberts  v.  Mason,   10  Ohio  (N.  S.),  ^  Rennet  v.  Lockwood,  20  Wend.  223. 
277 ;  New  Orleans  v.  AUbritton,  38  Miss.  ''  Lincoln  v.  Saratoga,  &c.,  23  ib.  425. 
242.  8  Good  V.  Mvlin,  8  Barr.  51  ;  overrul- 

3  Marshall  v.  Betner,  17  Ala.  832.  inor  Wilt  v.  Vickers,  8  Watts,  235,  and 
*  Ives  r.  Carter,  24  Conn.  392.     See     Rogers  v.  Fales,  5  Barr,  159. 

Linsley  v.  Bushnell,  15  ib.  225. 

(a)  Damages  cannot  be  allowed  the  de-    judgment  is    in    favor  of   the    plaintiff", 
fendant   as    attorney's    fees,  where    the    Levy  v.  Baer,  19  La.  An.  468. 


CH.    XV.]         INTEREST,   COSTS,   COUNSEL-FEES,   EXPENSES.  683 

"  If  filling  up  the  pit  was  necessary  to  destroy  the  nuisance,  the 
necessity  having  been  caused  by  the  defendant,  he  ought  to  be 
liable  for  the  expense.  It  does  not  appear  by  the  report,  that 
any  cheaper  mode  could  have  been  adopted,  and  there  being 
an  order  from  the  Board  of  Health  to  fill  it  up,  it  should  be  pre- 
sumed to  have  been  necessary,  unless  the  contrary  had  been 
shown."  ^ 

1  Shaw  V.  Cummiskey,  7  Pick.  73 ;  per  Parker,  C.  J.,  ib.  78. 


684  DAMAGES.  [book  V. 


CHAPTER    XVI. 


INJURIES   RESULTING   IN   DEATH. 


§  1.  Contrary  to  the  rule  of  the  common  law,  it  is  now  very 
generally  provided  by  statute,  that  for  an  injury  resulting  in  the 
death  of  the  party  injured,  his  official  or  natural  representatives 
may  maintain  an  action,  and  recover  damages  for  the  benefit  of 
his  family  or  heirs-at-law.  The  statutes  on  the  subject  con- 
tain very  diverse  provisions,  but  in  their  construction  substan- 
tially similar  principles  have  been  adopted.  If  ;iot  originating  in, 
or,  as  is  probably  sometimes  the  case,  restricted  to,  accidents 
caused  by  railroads^  they  have,  as  might  naturally  have  been 
expected,  been  chiefly  called  into  practical  exercise  in  cases  of 
that  description.! 

§  2.  It  is  held,  that  in  case  of  death,  not  instantaneous,  caused 
by  the  fault  of  a  railroad,  the  administrator  may  recover  |:)^^7^^7^ye 
damages.^  But  the  term  punitive  damages,  in  a  statute  allowing 
a  civil  action  by  the  personal  representative  of  one  killed  by  the 
wilful  neglect  of  another,  does  not  exclude  the  idea  of  damages 
for  compensation.  The  damages  are  allowed  as  compensation  for 
the  loss  sustained,  but  the  jury  are  permitted  to  give  exemplary 
damages  on  account  of  the  nature  of  the  injury .^ 

§  2  a.  In  an  action  by  a  widow  against  a  railroad  company  for 
negligence,  by  which  her  husband  was  killed,  exemplary  damages 
cannot  be  recovered,  unless  such  negligence  was  wilful.  Nor 
damages  for  the  loss  to  his  children.* 

§  3.  Where  a  person  is  killed  by  the  act  of  another,  under  such 
circumstances  that  the  deceased,  had  he  survived,  could  have 
maintained  an  action  for  the  injury,  an  action  can  be  maintained 


1  See  Pym  v.  Great,  &c.,  4  Best   &         3  Chiles  v.  Drake,  2  Met.  (Ky.)  146. 
Smitli,  396.  ^  Pennsylvania,  &c.  v.  Ogier,  35  Penn. 

2  Murphy  v.  N.  Y.,  &c.,  29  Conn.  496  ;  60. 
Bowler  v.  Lane,  3  Met.  (Ky.)  311. 


CH.    XVI.]  INJURIES   RESULTING   IN   DEATH.  685 

under  9  &  10  Yict.  c.  93,  §§  1,  2,  for  tlie  benefit  of  the  surviving 
relatives,  in  respect  of  an  injury  arising  from  a  pecuniary  loss 
occasioned  by  the  death,  although  the  same  pecuniary  loss  would 
not  have  resulted  to  the  deceased  had  he  lived.  The  loss  of  the 
benefit  of  a  superior  education,  and  the  enjoyment  of  greater 
comforts  and  conveniences  of  life,  is  a  pecuniary  loss  for  which 
the  wife  and  children  of  the  person  killed  may  maintain  an  action, 
where  the  income  of  the  deceased  wholly  ceases  with  his  death, 
or  where  the  premature  death  prevents  the  deceased  from  having 
made  the  extra  provision  for  his  family  which  he  might  reasonably 
be  expected  to  have  made  had  he  lived  out  his  natural  life.^  So,  in 
an  action  for  causing  death  by  negligence,  the  jury  may  properly 
be  instructed,  that  the  wife  of  the  person  killed  would  have  been 
entitled  to  a  support  from  him  for  life,  and  his  child  during 
minority.^ 

§  4.  Where,  in  an  action  by  a  father  for  injury  resulting  from 
the  death  of  his  son  through  the  negligence  of  a  railway  company, 
it  appeared  that  the  son,  who  was  twenty-seven  years  of  age,  and 
unmarried,  but  living  away  from  his  parents,  had  for  the  last 
seven  or  eight  years  been  in  the  habit  of  visiting  them  once  a 
fortnight,  and  of  taking  them  on  those  occasions  presents  of  tea, 
sugar,  and  other  provisions,  besides  money,  amounting  in  tlie 
Avhole  to  about  <£20  a  year:  held,  the  jury  might  infer  that  the 
father  had  such  a  reasonable  expectation  of  pecuniary  benefit 
from  the  continuance  of  his  son's  life,  as  to  entitle  him  to  recover 
damages  under  the  statute;  but  not  the  expenses  of  the  funeral 
or  family  mourning.^ 

§  5.  It  is  not  error,  in  an  action  by  a  widow  for  an  injury 
resulting  in  the  deatli  of  her  husband,  for  the  court,  after  giving 
a  correct  instruction  to  the  jury  as  to  the  measure  of  damages, 
to  add,  "much  is  left, and  much  must  always  be  left,  to  your  sound 
discretion."  It  must  be  intended,  that  this  discretion  is  to  be 
exercised  within  the  limitation  previously  prescribed  to  them  by 
the  court. ^ 

§  5  a.  In  an  action  brought  by  children  jointly  for  negligence 
in  causing  the  death  of  their  father,  the  measure  of  damages  is 


1  Pvm  r.  Great,  &c.,8  Jur.8I0.81Law  (N.  S.)   711;  Frunklin   v.  S.   E.  Kaihvf 

J.  Q.  B.  •J4U  ;  10  Weekly  Kep.  737  ;  G  L.  Co.,  8  II.  &  N.  IJII  ;  4  Jur.  (N.  S.)  3l)5. 
Times  (N.  S.),  rui'.  *  Pennsylvania,  &c.  v.  Ogier,  35  Pen 

■'    AUi..,*', .    n'^..u"   o  Titit.    o  <  ,1  nr> 


Althof  V.  AVolf,  2  Hilt.  344.  GO. 

2  Dalton  V.  Southeastern,  &c.,  4  Jur. 


ay 

Penu. 


686  DAMAGES.  [book   V. 

the  pecuniary  value  of  his  life.^  There  is  error  "  in  supposing  that 
none  but  those  who  can  show  some  actual  damage  are  entitled  to 
recover.  If  such  were  to  be  the  rule,  we  should  have  the  indecent 
spectacle  of  an  investigation  whether  the  loss  of  a  parent  or  child 
was  or  was  not  in  fact  an  advantage  rather  than  a  loss ;  for,  cer- 
tainly, if  none  be  allowed  to  recover  but  such  as  are  able  to  show 
a  pecuniary  loss,  the  defendants  would,  with  great  apparent  reason 
at  least,  be  entitled  to  claim  the  right  to  prove  the  contrar}',  and 
to  show  peradventure  that,  by  the  death,  the  party  suing  may 
have  succeeded  to  an  estate,  or,  on  the  other  hand,  had  been 
relieved  from  the  burden  of  maintenance.  In  case  of  the  death 
of  aged  persons  or  helpless  infants  we  might  expect  ...  to  have 
the  point  discussed  whether  the  death  was  an  actual  loss  or  gain. 
The  law  means  not  to  open  the  door  to  any  thing  so  shocking.  It 
treats  the  value  of  the  life  lost  as  a  species  of  property,  and  gives 
it,  where  children  sue,  to  them  in  the  same  proportions  as  the 
personal  estate.  .  .  .  Hence  the  propriety  of  joining  all  the  chil- 
dren." 2 

§  5  &.  But,  in  an  action  by  the  personal  representative  of  a 
deceased  person,  to  recover  damages  for  his  death  under  9  <fe  10 
Yict.  c.  93,  the  jury,  in  assessing  the  damages,  are  confined  to 
injuries  of  which  a  pecuniary  estimate  can  be  made,  in  reference 
to  a  reasonable  expectation  of  pecuniary  benefit  as  of  right  or 
otherwise  from  the  continuance  of  the  life,  and  cannot  take  into 
consideration  the  mental  suffering  occasioned  to  the  survivors.^ 
So  in  an  action  under  the  (N.  J.)  Act  of  March  3,  1848,  brought 
by  a  father  against  a  railroad  for  causing  the  deatli  of  a  son, 
damages  are  to  be  estimated  by  the  actual  pecuniary  injury  to  the 
plaintiff",  without  taking  into  consideration  the  injury  to  his  feel- 
ings.* So,  in  an  action  by  a  widow  against  a  railroad  company,  for 
the  killing  of  her  infant  son,  by  the  negligence  of  an  agent,  the  jury 
cannot  consider,  besides  the  actual  pecuniary  loss  to  the  plaintiff, 
occasioned  by  the  death,  such  other  circumstances  as  have  injuri- 
ously affected  the  plaintiff"  in  person,  in  peace  of  mind,  and  in 
haj)piness.^  So,  in  an  action  by  a  woman  against  a  railroad  cor- 
poration for  personal  injuries  occasioned  to  her  by  their  engine, 

1  North,  &c.  V.  Robinson,  44  Penn.  175.  4  C.  B.  (N.  S.)  296  ;  57  Penn.  335  ;  Mc- 

2  Per  Tliompson,  J.,  ib.  178.  Intyre  v.  New  York,  47  Barb.  515. 

3  Blake  v.  The  Midland,  &c.,  10  Eng.  ^  Telfer  v.  Northern,  1  Vroom,  188. 
L.  &  Eq.  437  ;  Franklin  r.  Sontheastern,          &  Ohio,  &c.  v.  Tindall,  13  Ind.  366. 
&c.,  3  Hurl.  &  Nor.  211 ;  Daltou  v.  Same, 


CH.    XVI.]  INJURIES    RESULTING   IN   DEATH.  687 

tlie  fleatli  of  her  husband  by  the  same  cause,  or  tlie  fact  tliat  she 
has  cliildren  dependent  upon  her  lor  support,  is  not  admissible  in 
evidence  to  increase  the  damages.^ 

§  6.  In  an  action,  under  the  New  York  Statutes  of  1847  and 
1849,  for  the  death  of  a  child,  caused  by  negligence,  damages  can- 
not be  allowed  for  the  wrong  done  to,  or  the  pain  suffered  by,  the 
child,  or  the  grief  and  anguish  of  the  parents.  Their  interest 
is  wholly  pecuniary .2  So,  in  an  action  against  a  railroad  company 
by  a  husband,  for  causing  the  death  of  his  wife,  under  the  same 
statutes,  damages  cannot  be  allowed  for  loss  of  her  society  or  for 
his  mental  suffering.^  So  in  an  action,  under  the  Pennsylvania 
Statute  of  1855,  by  a  widow  against  a  railroad  for  causing  the 
death  of  her  husband,  the  judge  charged  the  jury  :  "  The  question 
of  damages  is  for  you  ;  should  you  feel  it  necessary  to  examine 
that  question,  let  fair  and  exact  justice  be  your  guide,  and  your 
own  good  sense  will  determine  it."  Held,  the  jury  should  have 
been  instructed,  that  the  measure  of  damages  was  the  plaintiff's 
pecuniary  loss,  and  that  no  allowance  was  to  be  made  as  a  sola- 
tium for  wounded  feelings,  or  as  vindictive  damages.'* 

§  7.  Where  a  wife  is  killed  by  the  negligence  of  a  railroad, 
leaving  children,  in  an  action  by  the  husband,  as  administrator, 
the  value  of  her  earnings,  and  the  probable  increase  of  the  chil- 
dren's estate,  upon  his  death,  by  means  of  such  earnings,  cannot 
make  a  part  of  the  damages.  Otherwise  with  the  loss  to  the 
children  of  maternal  nurture  and  education,  which  is  a  pecuniary 
injury  within  the  statute.^  In  such  action,  the  husband  cannot 
recover  for  the  value  of  the  wife's  services  to  him,  and  evidence 
of  such  value  is  inadmissible.^ 

§  8.  In  a  suit,  brought  by  a  husband  and  father  for  the  death  of 
his  wife,  resulting  from  the  defendant's  negligence,  an  expectancy 
of  the  children  in  the  earnings  of  their  mother's  personal  labor 
cannot  be  considered  in  the  damages,  since  this  became  at  once 
the  fatlier's  property,  and  the  children  could  only  take  them  as 
next  of  kin,  in  the  remote  contingency  of  his  continuing  to  own 
them  and  dying  intestate  in  their  lifetime.  Though,  if  she  had 
been  a  widow  engaged  in  a  profitable  business,  with  a  probability 

1  Shaw  V.  Boston.  &c.,8  Cray.  45.  5  Tillev  v.  Hudson,  &c.,  24  N.  Y.   (10 

2  Lelmian  v.  HroDklyn,  2',i  Barb.  234.  Sniitli)  471. 

3  (iieeii  r.  Hudson,  iic,  82  ih.  25.  6  Dickins  v.  New  York,  &c.,  23  ib.  (9 
*  Pennsylvania,  &c.,  v.  Vandever,  36  Smith)  158. 

Penn.  2'ja. 


688 


DAMAGES. 


[book  V. 


of  acquiring  and  leaving  wealth,  her  children  might  perhaps 
claim  damages  for  being  deprived  of  their  probable  succession. 
In  such  case,  the  death  is  a  ground  for  damages  by  her  children, 
under  the  statute  ;  the  word  ''  pecuniary  "  not  being  confined  to 
cases  of  loss  of  money  or  property.  And  the  damages  should  not 
be  nominal  merely.  The  plaintiff  may  show  the  habitual  occupa- 
tion and  employment  of  the  deceased,  for  the  purpose  of  showing 
her  general  capacity  and  relation  to  her  family .^ 

§  9.  Where  a  child,  by  A,  his  next  friend,  recovered  in  an 
action  for  injury  from  a  horse  and  died  nine  days  after  the  trial, 
and  judgment  was  signed  by  A ;  held,  no  ground  of  new  trial, 
although  the  damages  were  presumably  given  in  the  expectation 
that  the  child  would  live  ;  and  that  proceedings  should  not  be 
stayed.^ 

§  10.  In  case  of  death  from  negligence,  the  amount  received 
from  a  life-policy  is  not  to  be  deducted  from  the  damages. -^  (a) 

1  Tilley  >:  Hudson,  &c.,  24  N.  Y.  (10  p.  121.  See  Sts.  17  Car.  2,  c.  8,  §  1 ;  15 
Smith)  471.  &  16  Vict.  e.  76. 

2  Kramer   v.  Waymark,  Law  Rep.   1  3  Altliof  i^.  Wolf,  2  Hilt.  344. 
Exch.  241 ;  Amn.  Law  Rev.,  Oct.   1866, 


(a)  The  later  reports  abound  with  cases 
upon  tlie  subject  considered  in  the  text,  of 
which  only  a  brief  abstract  can  here  be 
given. 

Parents,  in  an  action  for  the  death  of  a 
minor  child,  can  recover  only  the  pecuni- 
ary value  of  his  services  during  minority ; 
not  for  their  agonized  feelings,  or  loss  of 
the  child's  society.  Caldwell  v.  Brown, 
53  Penn.  453. 

Under  §§  11  &  12,  c.  135  (Wis  )  Rev. 
Sts.,  a  parent  can  recover,  for  injuries  to 
a  minor  causing  death,  only  the  actual 
pecuniary  damages  resulting  from  the 
injuries.  Unless  the  indigent  condition  of 
the  parents  be  proved,  the  damages  must 
be  limited  to  services  during  minority. 
Potter  V.  Chicago,  21  Wis.  372. 

The  law  entitles  the  mother  to  the  ser- 
vices of  her  child  f)nly  during  his  minor- 
ity (the  father  being  dead)  ;  the  chances 
of  survivorship,  his  ability  or  willingness 
to  support  lier,  and  her  mental  suttering 
because  of  the  death  of  her  child,  are  mat- 
ters too  vague  to  enter  into  an  estimate 
of  damages  merely  compensatory.  State 
V.  Baltimore,  24  Md.  84. 

In  an  action  by  a  father  against  a  rail- 
road for  the  negligent  killing  of  his  female 
child,  the  court  refused  to  instruct  the 
jury,  that,  in  estimating  what  the  services 
of  the  deceased,  until  she  was  twenty-one 


years  old,  would  have  been  worth  to  the 
plaintiff,  they  were  to  make  "  allowance 
for  the  chances  of  her  marriage  alter  she 
should  attain  the  age  of  eighteen  years  ;  " 
but  instructed  them  that  the  contingency 
of  marriage  was  "too  remote  to  be  con- 
sidered by  them."  Held,  whether  such 
contingency  was  too  reinote  or  not,  it  was 
correctly  excluded,  because  there  was  no 
evidence  upon  which  the  jury  could  have 
arrived  at  a  conclusion  on  the  subject. 
Seaman  i\  Farmer's,  15  Wis.  578.  In  an 
action  against  a  railroad  for  negligently 
causing  the  death  of  the  plaintitfs'  daugh- 
ter, a  child  ten  years  old;  to  entitle  the 
plaintiffs  to  damages,  based  upon  a  reas- 
onable expectation  of  pecuniary  benefit 
to  them  from  a  continuation  of  the  child's 
life  after  she  shoiild  become  of  age,  they 
should  show  their  circumstances  and  con- 
dition, so  as  to  raise  a  reasonable  pre- 
sumption that  they  might  need  and 
receive  aid  from  her  after  her  minority. 
Instead  of  a  general  statement  that  they 
are  "poor,"  it  would  be  better  to  give  some 
details  of  the  degree  of  their  poverty,  and 
as  to  their  age,  and  whether  they  were 
afflicted  with  transient  or  chronic  disease. 
Evidence  of  the  character  and  disposition 
of  the  child  while  living  is  all  the  evidence 
that  can  be  given  as  to  whetiier  after 
minority  she  would  have  the  disposition 


CH.    XVI.] 


INJURIES    RESULTING    IN    DEATH. 


689 


to  aid  lier  parents.  Potter  v.  Chicago,  22 
Wis.  G15. 

Evidence  tliat  a  hoy,  when  he  was 
killed,  was  on  an  errand  tor  Jiis  jiarents,  is 
evidence  of  tiie  pecnniary  valne  of  liis 
life.     O'Mara  v.  Hudson,  ^8  \.  Y.  445. 

In  an  action  bj'  an  administratrix 
against  a  city,  to  recover  damages  for  her 
intestate's  death  resulting  troni  insutti- 
cient  street-ligiits,  evidence  that  she  was 
the  mother,  next  of  kin  of,  and  dependent 
for  sujjport  upon,  the  ileceased,  is  admis- 
sible, as  afl'ecting  tlie  amount  recover- 
able.    Chicago  V.  I'owers,  42  111.  IG'J. 

In  estimating  damages  from  an  injury 
causing  death  to  tiie  husband  of  thephiin- 
tiB|  the  jury  may  consider  tiie  value  of 
the  life,  and  in  so  doing  regard  his  jiroba- 
ble  gains  and  accumulations.  Catawissa 
V.  Armstrong,  52  I'enn.  282. 

In  estimating  the  damages  in  a  case 
where  a  wife  is  suing  a  railroad,  under 
Irwin's  (Ga.)  Code,  §  2'J20,  for  the  liomi- 
cide  of  her  husbanci,  who  was  without 
fault,  the  jurj'  are  to  inquire  what  would 
be  a  reasonable  support  for  her,  according 
to  his  circumstances  in  life,  as  they  ex- 
isted at  his  death,  and  as  they  may  rea- 
sonably be  supjiosed  to  exist  in  the  future, 
in  view  of  his  character,  habits,  occupa- 
tion, and  prospects,  and,  when  the  annual 
money  value  of  that  support   has    been 


time  of  his  death.     Baltimore  v.  State,  24 
Md.  271. 

In  an  action  by  a  father,  as  adminis- 
trator of  his  wife,  alleged  to  have  been 
killed  by  the  defendant's  negligence,  evi- 
dence in  relation  to  the  cajiacity  of  the 
mother  to  transact  business  and  make 
money  is  proper,  as  showing  the  pecuniary 
benefit  winch  the  mother  was  to  her  chil- 
dren, and  lier  cajiacity  to  bestow  such 
training  and  education  as  would  lie  jiecu- 
niarily  serviceable  to  the  children  in  after- 
life. Tilley  v.  Hudson,  29  N.  Y.  (2  Tifla.) 
252. 

In  an  action  by  an  ailministrator  to  re- 
cover damage  oji  account  of  tlie  death  of 
his  intestate,  causeil  by  the  negligence  of 
a  railroad,  if  the  next  of  kin  of  the  de- 
ceased were  not  dependent  ujion  him  for 
support  in  whole  or  in  part,  tiie  jury  can 
only  find  nominal  damages.  Chicago,  &c. 
R.  R.  Co.  V.  Swett,  45  lU.  197. 

The  recovery  in  an  action  under  the 
(111.)  Statute  against  a  railroad  tor  death 
resulting,  &c.,  can  only  be  for  the  ])ecuni- 
ary  loss  and  damage,  and  not  for  the  be- 
reavement. Nothing  can  be  given  as 
solatium.  If  the  next  of  kin  are  collateral 
kindred  of  the  deceased,  and  have  not 
been  receiving  from  him  pecuniary  assist- 
ance, and  are  not  in  a  situation  to  require 
it,  it  is  immaterial  how  near  tlie  degree  of 


found,  to  give,  as  damages,  its   present     relationsliip  may  be,  only   nominal  dam 


worth,  according  to  the  expectation  of 
life  of  the  deceased,  as  ascertained  by  the 
mortuary  tables  of  established  reputation. 
Macon  r.  Johnson,  o8  (!a.  409. 

In  an  action  Viy  the  wife  for  damages 
for  the  death  of  her  husband,  caused  by 
the  carelessness  of  a  railroad,  evidence 
was  given  of  the  age,  habits,  health,  and 


ages  can  be  given.  If,  on  the  other  hand, 
the  next  of  kin  have  been  dejicndent  on 
the  deceased  for  support,  in  wliole  or  in 
part,  it  is  innnaterial  how  remote  the  re- 
lationship may  be,  there  has  been  a 
jieciniiary  loss  for  which  compensation 
must  be  given.  So,  also,  if  the  deceased 
was  a  minor  and  leaves  a  father  entitled 


occupation  of  the  deceased  at  the  time  of  hy  law  to  his  services.     Chicago  v.  Shan- 

his  death,  and  also  of  the  number  of  his  non,  43  111.  388  ;  Chicago,  &c.  v.  Swett, 

famil}',    and   their   condition  before    and  45  111.  197. 
after  ills  death;  but   no   evidence  of  (lie 

specific  wages  paid  him  at  the  time  of  his         In  an  action  by  a  widow  and  children  of 

death.      Held :  1.  That  a  prayer,  "  that  a  person  killed  by  negligenre  ;  held,  the 

in  the  absence  of  proof,  other  than  the  plaintitis  had  an  interest  in  his  life  to  the 

death,  age,  and  condition   of  health,  atul  extent  of  their  sujijiort,  at  least,  although 


members  and  state  of  the  family  of  tiie 
deceased,  of  actual  damage,  the  verdict, 
in  the  event  of  its  being  for  the  iiiaiiititf, 
must  be  for  nominal  damages  only,"  was 
properly  rejected.  2.  That  the  jury 
should  take  into  consideration  only  such 


he  was  largely  indebted  at  the  time  ot  his 
death.  Pennsylvania  v.  Henderson,  51 
I'enn.  315. 

In  an  action  against  a  railroad  for  neg- 
ligence in  causing  the  death  of  the  jilain- 
titf's  father;    the  value  of  the  life  lost. 


compensation  to  the  surviving  members  estimated  by  a  pecuniary  standard  is  wliat 

of  the  deceaseil's  family,  as  would  supjily  is  to  be  recovered,  to  be  divided  among 

to  them   the  same  results  as  would  liave  all  the  children  alike.     Korth  y.  Robinson, 

followed  from  his  labor  during  the  proba-  44  Penn.  175. 

ble  period  he  wouUl  otherwise  have  lived         The  damages  in  case  of  death  by  neg- 

and  earned  a  livelihood ;  but  that  they  ligence  are  the  pecuniary  loss.     Caldwell 

might   take   into    consideration    his  age,  v.  Brown,  53  Penn.  453. 
health,  and  occupation,  and  the  comfort         In  an  action  by  minor  children  against 

and  support  aHorded  his  family  at   the  a   railroad   for   negligently   causing   the 

44 


GOO 


DAMAGES. 


[book  V. 


death  of  their  father,  it  was  held  to  be 
error  to  instruct  the  jury  that  "  It  wouhl 
perhaps  he  a  tiiir  way  to  estimate  tlie 
amount  of  diimanes,  to  take  tlie  probaljle 
amount  of  tlie  father's  accumuhitions  for 
the  time  lie  might  reasonably  have  been 
expected  to  live,  and  find  that  for  the 
plaintitts  ;  but  if  you  can  find  a  better  rule 
you  arc  at  liberty  to  adopt  it.  It  might 
not  be  fair  to  deduct  his  family  expenses." 
The  proper  measure  of  damages  is  the 
pecuniary  loss,  without  any  solatium  for 
distress  of  mind  ;  and  that  loss  is  what 
the  deceaseil  would  have  probably  earned 
by  his  intellectual  or  botlily  labor  in  his 
business  or  profession  during  the  residue 
of  his  lifetime,  and  which  would  have 
gone  for  the  benefit  of  his  children,  tak- 
ing into  consideration  his  age,  ability,  and 
disposition  to  labor,  and  his  habits  of  liv- 
ing and  expenciiture.  Penn.  li.  li.  Co.  v. 
Butler,  57  Venn.  335. 

In  an  action  by  an  administrator  of  a 
deceased  person  who  was  killed  on  a  rail- 
road through  the  negligence  of  the  com- 
pany, the  jury  were  instructed  that  they 
were  not  limited  to  the  assessment  of 
damages  for  the  actual  present  loss  that 
might  be  proved,  but  they  might  go  fur- 
ther and  compensate  for  the  relative  injury 
with  reference  to  the  future,  and  compen- 
sate for  pecuniary  injuries  present  and 
prospective.  Held,  to  be  erroneous,  as 
being  too  general  and  indefinite.  In  such 
an  action,  it  was  error  to  instruct  thejury 
as  to  the  disposition  the  deceased  may 
have  had  to  aid  his  mother;  the  question 
was,  Did  he  help  her,  was  he  bound  to  do 
so,  and  what  does  she  lose  in  this  regard 
by  his  death  "?  Chicago  v.  Swett,  45  111. 
1U7. 

That  part  of  the  (Conn.)  Statute  of 
1853  relating  to  railroads,  which  hxes  the 
minimum  of  damages  to  be  recovered  for 
the  loss  of  life  of  a  passenger  by  reason 
of  negligence  in  the  management  of  the 
road,  is  not  penal,  but  remedial.  There- 
fore, where,  in  an  action  brought  by  an 
administrator  against  the  trustees  of  a 
railroad,  for  the  loss  of  the  hfe  of  the 
intestate  by  reason  of  negligent  carriage, 
the  Superior  Court,  on  a  hearing  in  dam- 
ages, after  demurrer  overruled,  found  as 
a  fact  that  the  defendants  were  not  guilty 
of  any  negligence ;  held,  nevertheless, 
that  the  plaintiff  was  entitled  to  recover 
the  minimum  sum  of  $10(J0  fixed  by 
the  statute,  as  the  defendant  by  demur- 
ring and  omitting  to  deny  the  facts 
admitted  the  existence  of  sufficient  negli- 
gence to  give  a  right  of  recovery  on  the 
statute.  Lamphear  v.  Buckingham,  33 
Conn.  237. 

The  (Conn.)  Act  of  1853  (Rev.  1866, 


p.  202)  provides,  that,  where  a  life  is  lost 
by  reason  of  the  negligence  of  a  railroad 
com))any,  the  company  shall  be  liable  to 
pay  to  the  executor  or  ailministrator  of 
the  deceased,  for  the  benefit  of  the  family 
and  heirs  of  tlie  deceased,  damages  not 
less  than  $1000,  and  not  more  than 
$5000.  Held,  the  ground  of  the  damages 
was  not  the  loss  to  such  relatives  by  tlie 
death,  but  the  injury  to  the  deceased. 
Goodsell  V.  Hartford,  33  Conn.  51. 

Testimony  in  regard  to  the  family  of  a 
decedent,  their  ages,  deceased's  occupa- 
tion, age,  health,  habits,  earnings,  and 
property,  is  admissible  in  ascertaining 
damages  in  an  action  against  a  railroad 
to  ascertain  the  pecuniary  damage  to  the 
estate,  at  least  where  the  jury  have  been 
instructed  not  to  allow  any  thing  for  pain 
and  suffering  of  the  deceased,  or  grief  of 
his  family,  or  loss  of  his  society.  Donald- 
son V.  Mississippi,  18  Iowa,  280. 

Two  cases  upon  the  subject  have  re- 
cently occurred  in  Pennsylvania:  — 

Opinion  by  Sharswood,  J. 

This  was  an  action  by  the  defendants 
below  as  guardians  of  the  minor  children 
of  William  Butler,  deceased,  against  the 
plaintiffs  in  error  to  recover  damages  on 
account  of  the  death  of  their  father, 
caused,  as  it  was  alleged,  by  negligence. 

The  first  error  assigned  has  been  prop- 
erly abandoned,  as  it  is  too  well  settled  to 
be  now  controverted,  that  a  stipulation  by 
a  common  carrier,  that  he  shall  not  be 
liable  for  damages,  does  not  relieve  him 
from  responsibility  for  actual  negligence 
by  himself  or  servants.  Goldey  u.  Penn. 
R.  R.  Co.,  6  Casey,  242;  Penn.  R.  R.  Co. 
V.  Henderson,  2  P.  F.  Smith,  315.  The 
charge  was  as  favorable  to  the  plaintiffs 
in  error  on  this  point  as  they  could  have 
asked. 

The  second  error  assigned  is  that  the 
learned  judge  erred  in  his  instructions  to 
the  jury  as  to  the  measure  of  damages. 
These  instructions  were  as  follows  ;  "  It 
would  perhaps  be  a  fair  way  to  estimate 
the  amount  of  damages  to  take  the  prob- 
able amount  of  his  (the  decedent's) 
accumulations  for  the  time  he  might  rea- 
sonably have  been  expected  to  live,  and 
find  that  for  the  plaintiff.  This,  as  we 
said,  may  be  a  fair  way  of  calculating  the 
damages  sustained,  but  as  it  lias  been 
said  in  Penn.  R.  R.  Co.  v.  McClosky,  11 
Harris,  526,  if  you  can  find  a  better  rule 
you  are  at  liberty  to  adopt  it.  In  esti- 
mating his  accumulations,  you  will  re- 
member that  it  might  not  be  fair  to 
deduct  his  family  expenses,  because  his 
family  lived  out  of  it,  and  now  they  do 
not  have  it  to  live  upon."  We  tliink 
that  there  was  manifest  error  in  this  in- 


CH.    XVI.] 


INJURIES   RESULTING    IN    DEATH. 


G91 


stniction.  It  pave  the  jury  no  definite 
measure  of  daiiuif^es  whatever,  l)ut  left 
tlieni  at  liberly  to  adopt  any  one  tliey 
saw  fit.  The  case  of  Peini.  K.  K.  Co.  v. 
McCIosky,  11  Harris,  o2tJ,  to  wliicli  tlie 
learned  jiidjie  referred,  was  an  action  by 
the  personal  representative  of  tlie  de- 
ceased under  the  Act  of  Ai)rill5,  l.S.')l,and 
has  no  a[)piicahility  to  an  action  inslitiiteil 
as  tlds  was  under  tlie  .Vet  of  April  2(1, 
1855,  as  is  shown  by  the  j)resent  Chief 
Justice  in  his  opinion  in  the  I'enn.  R.  R. 
Co.  V.  Zebe,  '.)  Casey,  MS.  There  is  no 
doubt  an  inherent  difficulty  in  plaeinjj  a 
pecuniary  value  ujjon  human  iile,  espec- 
ially the  value  of  a  faliier's  life  to  Ids 
children.  Yet  it  is  certainly  iin])ortant 
tliat  a  clear  and  definite  ride  should  be 
established,  antl,  as  this  case  yoes  back,  it 
seems  to  be  our  duty  to  say  what  the  in- 
struction of  the  court  below  to  the  jury 
oujjht  to  have  been.  After  an  attentive 
exannnation  and  review  of  all  the  cases 
which  have  heretofore  been  decided,  we 
are  of  opinion  that  the  projier  measure  of 
damages  is  the  i)ccimiary  loss  suHered  by 
the  parties  entitled  to  the  sum  to  be  re- 
covered, —  in  this  instance  the  children  of 
the  decedent, —  without  an}'  so/afium  for 
distress  of  mind  ;  and  that  loss  is  what 
the  deceased  would  have  probably  earned 
by  his  intellectual  or  bodily  labor  in  his 
business  or  profession  during  the  residue 
of  his  lifetime,  and  wliich  would  have 
gone  for  the  benefit  of  his  children,  tak- 
ing into  consideration  his  age,  ability,  and 
disjxisition  to  labor  and  his  habits  of  liv- 
ing and  expenditure.  This  mode  of  stat- 
ing the  rule  is  substantially  that  which 
was  adopted  by  the  learned  president  of 
the  twelfth  judicial  district  (Judge  Pear- 
son), in  Fink  v.  Garman,  4  W'right,  U5, 
but  wiiicli,  as  it  was  acquiesced  in  by 
both  parties  and  no  exception  taken,  was 
not  passed  upon  by  this  court. 

Tlie  third  assignment  of  error  is  be- 
cause the  court  erred  in  admitting  the 
testinioii}'  of  George  W.  Wiley,  touching 
the  dependence  of  the  plaintifis  below  on 
their  grandparents,  and  the  circunistaiices 
of  those  grandparents.  This  was  clearly 
irrelevant,  and  had  no  bearing  whatever 
on  the  true  measure  of  damages,  —  the 
pecimiary  loss  of  the  plaintifis.  The 
learned  judge  below  became  convinced 
himseit  tiiat  it  was  so,  and  in  his  charge 
withdrew  it  entirely  from  tiie  considera- 
tion of  the  jury.  That  this  may  some- 
times be  done  has  certainly  been  decided. 
The  rule  upon  this  subject,  with  its  <juali- 
fications,  is  well  stated  an<l  explained  in 
the  Delaware  and  Hudson  Canal  Co.  i». 
Barnes,  7  (.Jasey,  1',I3.  It  is  in  entire  ac- 
cordance with  the  opinion  in  that  case  to 
Id,  as  we  do  liere,  tiiat  if  improper  evi- 


dence is  given  tending  to  inflame  the 
damages,  and  it  is  not  struck  out  at  or 
before  the  close  of  tlie  testimony,  so  that 
counsel  shall  not  be  allowed  to  refer  to  or 
dwell  ui)on  it  in  their  address  to  the  jury, 
it  is  altogetiier  too  late  to  cure  the  mistake 
by  directing  the  jury  to  disregard  it  in 
the  charge.  Such  was  the  fact  in  this 
case,  anil  we  are  of  opinion,  therefore, 
that  this  assignment  of  error  is  sustained. 
Judgment  reversed  and  voiiif;  Jaiins  de 
vvro  awarded.  —  renn.  li.  K.  C(j.  v.  liutler 
el  <il. ;  Leg.  Intell. 

Penn.  v.  Keller,  Leg.  Intell.  Feb.  24, 
1871.  "  The  fifth  error  assigneil  raises  a 
questif)n  of  the  right  of  the  plain!  ill',  Louisa 
Keller,  to  recover  for  the  loss,  occasioned 
by  the  death  of  her  son,  by  negligence  of 
the  company,  he  being  over  age  at  the 
time.  But  our  learned  brother  charged 
in  answer  to  the  point  on  that  siiljject 
proi)ounded,  that  if  the  family  relation 
still  existed  between  mother  and  son  at 
the  time  of  the  death,  an<l  there  were 
reasonable  grounds  on  her  j)art  to  expect 
future  pecuniary  advantage  from  the  con- 
tinuance of  this  relation,  as  in  the  past 
since  arriving  at  age,  the  destruction  of 
such  expectations  by  the  negligence  of  the 
defendants  in  causing  his  (leatli,  it  would 
sustain  the  action,  and  referred  the  facts 
in  evidence  to  the  jury.  This  was  right, 
or  the  case  of  the  Penn.  K.  K.  Co.  v. 
Adams,  5  P.  F.  Smith,  4'J9,  is  wrong, —  a 
conclusion  which  we  are  by  no  means 
prepared  to  make  ;  tliis  error  is  tlierefore 
not  sustained. 

The  material  (juestion  in  the  case  is 
raised  by  the  defendant's  fourth  point, 
and  the  answer  thereto.  The  jjoint  was, 
"  that  any  recovery  had  in  this  case,  must 
be  strictly  limited  to  a  iiecuniary  compen- 
sation for  a  loss  actually  shown  to  have 
resulted  from  the  negligence  of  the  de- 
fendant." The  learned  judge  agreed  and 
charged  that  any  recovery  in  this  case 
must  be  strictly  limited  to  a  pecuniary 
com])ensati()n  for  the  j^ecuniary  loss  re- 
sulting to  the  plaintifi';  but  added,  "  it  is 
not  necessary,  to  enable  the  jilaintitr  to 
recover  damages  for  the  death  of  her  son, 
that  the  evidence  should  show  the  precise 
amount  in  dollars  and  cents.  From  the 
nature  of  the  case,  the  precise  and  definite 
amount  of  the  damage  cannot  be  actually 
shown.  But  the  evidence  must  clearly 
show  that  the  plaintifi'  did  actually  sus- 
tain damages  —  "  jiecuniary  d.images  or 
loss."  This  was  the  view  taken  by  the 
learned  juiige,  of  the  second  section  of 
the  Act  of  4th  April,  1868,  which  he  con- 
ceived to  be  recjuired,  as  a  reasonalde 
interpretation  of  it.  In  this  we  all  agree. 
The  construction  contended  lor  by  the 
company  would,  beyond  a  question,  deny 


692 


DAMAGES. 


[book  Y. 


compensation  for  death  by  negligence,  in 
almost  every  conceivable  case.  Is  it  i)os- 
sible  to  become  reconciled  to  tiie  belief 
that  tlie  legislature  intended,  that  by  tiie 
terms  used  in  the  section,  there  lurked  a 
repeal,  by  implication,  of  existing  reme- 
dies for  the  greatest  of  all  civil  wrongs, 
the  dei)rivation  of  life,  of  husband  or 
wife,  or  i)arent  and  child,  by  negligence  ? 
AVe  cannot  impute  sucli  an  intention,  un- 
less the  words  will  bear  no  other  meaning. 
I  certainly  beHeve  they  do.  A  plain  read- 
ing of  them  shows  a  purpose  to  declare 
what  the  courts  had  said,  by  construction, 
to  be  the  rule  in  giving  compensation 
under  the  Act  of  1865,  for  the  loss  of  life, 
viz.,  that  it  was  to  be  measured  by  the 
pecuniary  value,  and  loss  thereof  to  the 
parties  entitled  to  compensation,  and  thus 
make  that  rule  plain  and  uniform.  I  con- 
fess, that  until  tlie  views  of  the  counsel 
for  the  plaintiff  in  error  were  presented,  I 
never  suspected  such  a  construction  pos- 
sible. It  was  natural  to  entertain  the 
belief,  as  'I  did,  that  if  the  legislature 
meant  to  take  away  the  remedial  provi- 
sions of  the  Acts  of  1851  and  1855,  it 
would  have  said  so,  and  hence  I  supposed 
the  section  in  question  was  a  declaratory 
enactment  merely,  and  I  believe  so  yet, 
notwithstanding  tlie  able  and  earnest 
argument  of  the  counsel  that  it  meant 
more  than  this.  The  words  are:  "In 
all  actions  now  or  hereafter  instituted 
against  common  carriers  or  corporations, 
owning,  operating,  or  using  a  railroad  as 
a  public  highway,  whereon  steam  or  other 
motive  power  is  used,  to  recover  for  loss 
or  damage  sustained,  and  arising  either 
from  personal  injuries  or  loss  of  life,  and 
for  which,  by  law,  such  carrier  or  corpora- 
tion could  be  held  responsible,  only  such 
compensation  for  loss  or  damage  shall  be 
recovered,  as  the  evidence  shall  clearly 
prove  to  have  been  pecuniarily  suffered  or 
sustained,  not  exceeding,  in  case  of  per- 
sonal injury,  the  sum  of  three  thousand 
dollars,  nor,  in  case  of  loss  of  life,  the  sum 
of  live  thousand  dollars."  Annual  Digest 
by  Brightly,  Ib'Al. 

Now  it  seems  to  me,  the  very  limitation 
of  the  amount  which  may  be  recovered, 
implies,  tiiat  that  amount  may  be  given 
in  a  proper  case;  but  how  such  a  sum 
could  be  given  in  the  restricted  view 
taken  of  the  act,  I  cannot  see.  The  act 
says,  only  such  damages  shall  be  allowed 
as  the  evidence  shall  clearly  prove  to  have 
been  pecuniarily  suffered  or  sustained.  These 
words  are  exclusively  in  the  past  tense, 
and  if  so  construed  no  damages  whatever 
could  be  allowed.  Mo  damage,  under  the 
act,  could  be  said  to  have  accrued  to  any 
one,  until  the  death  resulted,  and  none 
can  be  allowed  by  the  terms  of  the  act 


but  such  as  have  been  sustained  by  the 
destruction,  by  negligence  of  tiie  life,  and 
as  these  words  do  not  apply  to  the  future, 
no  ilanuiges  at  all  could  be  given.  This 
view  is,  however,  utterly  unreasonable, 
we  think,  and  not  to  be  entertained  for 
a  moment.  In  this  way,  it  strikes  us, 
it  denies  all  damages,  under  this  act,  as 
well  as  under  the  Acts  of  1851  and  1855. 
But  there  is  another  aspect  of  it,  which 
will  result  from  the  principle  insisted 
upon,  viz.,  that  the  test  of  the  right  to 
recover,  being  the  "  pecunia7-ij  damacjes 
clearly  proved  to  have  been  suffered,"  it  will 
follow  that  all  those  who  from  youth,  old 
age,  or  other  circumstances,  are  non- 
producers,  may  become  the  victims  of 
negligence  without  any  compensation  to 
survivors.  Nay,  more,  the  corollary  of 
the  postulate  would  prevent  compensation 
where  the  survivors  are  absolutely  bene- 
fited by  the  death,  either  as  gainers  by 
the  distribution  of  the  property  of  the 
deceased,  or  by  the  riddance  of  a  trouble- 
some charge.  The  controversies  which 
woidd  arise,  if  this  were  the  rule,  would 
be  repugnant  and  offensive  to  the  sensi- 
bilities of  every  person.  The  law  could 
intend  no  such  thing,  and  we  are  not  to 
give  to  it  that  operation  by  construction. 
Compensation  for  the  loss  of  life  was 
given  to  certain  survivors  by  the  Act  of 
1845.  The  law  chose  to  regard  it  as 
property  in  a  certain  sense.  It  was  to  be 
estimated  by  this  same  standard  as  prop- 
erty, viz.,  its  pecuniary  value,  not  to  be 
enhanced  by  any  considerations  of  pain 
to  the  deceased,  or  anguisli  to  the  survi- 
vors. Life,  by  law,  had  a  value  which 
the  survivors  had  a  right  to  be  compen- 
sated for  the  loss  of — in  view  of  its  cir- 
cumstances. In  estimaiii'g  it,  considera- 
tions that  personal  exertions  may  ever 
be  required  of  its  possessor,  or  the  possible 
want  of  capacity  in  such  possessor,  are 
not  to  be  taken  into  account.  All  stand 
on  a  platform  common  to  their  positions, 
and  the  value  of  the  loss  to  be  compen- 
sated is  to  be  estimated  with  a  view 
thereto.  None  are  without  value  in  the 
eye  of  the  law,  and  because  there  are 
ditficulties  in  the  way  of  determining  the 
question  of  value,  it  is  not  a  good  reason 
for  denying  it  altogether.  The  sound 
sense  of  tlie  jury  must  ascertain  the 
I^ecuniary  value  by  which  it  is  to  be  esti- 
mated, from  tlie  evidence  in  the  case,  as 
best  they  may :  Kailroad  Company  v. 
Borren,  5  Wal.  U.  8.  Sup.  Ct.  Kep.  90. 
This  last  case  arose  in  Illinois  on  a  stat- 
ute somewhat  similar  to  the  one  in  ques- 
ti(m  ;  there  the  provision  is,  that  in  every 
such  action  "  lor  death,  occasioned  by 
negligence,  the  jury  may  give  damages  as 
they  shall  deem  fair  and  just  compensa- 


CH.    XVI.] 


INJURIES   RESULTING    IN    DEATH. 


G93 


tion  with  reference  to  the  pecuniary  in- 
juries resulting  from  sucli  deatli,  not 
exceeding,"  &c.  In  tliat  case  (and  it  sup- 
ports our  view ),  it  was  lieid  hy  tiie  Supreme 
Court  of  tlie  United  States,  tiiat  it  is  not 
necessary  to  tlie  recovery  tiiat  the  widow 
and  next  of  kin  shall  have  had  a  le^al 
claim  on  the  deceased  for  support.  This 
could  only  be  asserted  by  re^ardin<j  tlie 
life  as  property,  to  be  coni])ensated  with- 
out regard  to  past  earnings,  or  capacity 
to  earn,  at  the  time  of  death. 

We  ought  to  regard  the  Acts  of  1855 
and  18G8  as  in  piiri  mntiriit  ;  they  concern 
the  same   statutory  rights,  and  neither 


contains  what  the  other  does,  but  both 
make  a  system.  Together  they  give  a 
right  of  action  and  fix  a  stanihird  of  com- 
jieiisation  for  tlie  injury  to  be  compen- 
sated. In  this  asjjcct  we  see  utility  in  the 
section  of  the  Act  of  1808  referred  to,  ami 
we  escape  a  construction  destructive  of 
the  right  of  action,  incases  of  deatii,  given 
by  the  Act  of  1855.  We  tliink  our  brother 
laid  down  the  law  with  entire  accuracy 
when  he  held  the  loss  must  be  estimated 
by  its  pecuniary  value,  but  the  evidence 
need  not  show  the  precise  amount  in  tlol- 
lars  and  cents.  That  was  for  the  jury  to 
find  under  the  evidence-" 


694  DAMAGES.  [book   V. 


CHAPTER  XYII. 

HUSBAND     AND    WIFE ;     PARENT    AND    CHILD  ;     SEDUCTION  J     ABDUCTION. 

§  1.  In  a  joint  action  of  husband  and  wife  for  an  assault  and 
battery  on  the  latter,  compensation  for  the  loss  of  her  time  can- 
not be  included  in  the  damages. ^ 

§  1  a.  The  right  of  action  for  mental  suffering  is  confined  to 
the  person  injured.  A  husband  cannot,  in  his  own  right,  bring 
an  action  for  mental  suffering  caused  by  injury  to  his  wife.^ 

§  1  6.  In  an  action  for  seduction  of  a  wife,  damages  may  be 
given  with  reference  to  the  happy  relation  of  husband  and 
wife,  and  the  relation  of  friendship  or  obligation  between  the 
plaintiff  and  defendant ;  the  provision  for  children  of  the  mar- 
riage ;  and,  in  general,  the  facts  connected  with  the  intercourse 
between  the  guilty  parties.  Letters  of  the  husband  and  wife,  and 
her  letters  to  the  defendant  and  to  third  persons,  are  admitted  as 
evidence  of  the  feeling  which  subsisted  between  the  husband  and 
wife.^ 

§  2.  In  an  action  for  breach  of  promise,  accompanied  by  seduc- 
tion, damages  may  be  given  for  the  altered  social  position  of  the 
plaintiff  in  relation  to  her  home  and  family  through  the  defend- 
ant's conduct.* 

§  2  a.  In  an  action  for  seduction  of  the  wife,  where  loss  of 
service  is  alleged  in  aggravation  of  damages,  the  failure  to  prove 
it  does  not  defeat  the  right  to  recover  damages  for  the  mental 
anguish  of  the  husband.^ 

§  2  &.  In  an  action  of  seduction,  mere  proof  of  criminal  inter- 
course will  not  justify  exemplary  damages,  but  the  loss  of  ser- 

1  Barnes  v.  Martin,  15  Wis.  240.  §  55,  p.  43 ;  Jones  v.  Tliompson,  6  C.  &  P. 

2  Hyatt  V.  Adams,  16  Micii.  180.  415. 

3  Duke  of  Norfolk  w.  Germaine,  12  How.  *  Berry  v.  Da  Costa,  Law  Rep.  1  C. 
St.  Tr.  927;  Bull.  N.  P.  27;  James  v.  P.  331  (Eng.) ;  Amn.  Law  Kev.,  Oct.  1866, 
Biddington,  6  C.  &  P.  589 ;  2  Greenl.  Ev.  p.  121. 

5  Yundt  V.  Hartrunft,  41  111.  10. 


CH.    XVII,]  HUSBAND    AND    WIFE,    ETC.  695 

vice,  and  the  expenses  incurred  by  the  phiintifT  in  consequence 
of  the  act,  may  be  recovered.^ 

§  3.  In  an  action  by  a  father  for  seduction  of  his  daughter, 
damages  to  the  plaintiff's  feelings  may  be  recovered,  though  not 
specially  alleged  in  the  declaration  ;  being  a  natural  consequence 
of  the  pi'incipal  injury.^ 

§  4.  In  an  action  for  abduction  of  a  child,  the  plaintiif  ma}' 
recover  for  reasonable  expenses  in  pursuit  of  the  child,  without 
proving  malice.^ 

§  4  rt.  Where  a  boy,  between  sixteen  and  seventeen  years  of 
age,  in  running  with  a  fire-engine  at  night,  upon  an  alarm  of  fire, 
on  the  road-bed  of  a  railway  company  which  they  were  bound  to 
keep  in  proper  repair,  and  which  was  also  a  public  highway, 
stepped  into  a  hole  therein,  fell  across  the  track,  Avas  I'un  over 
by  the  engine,  and  his  leg  crushed,  requiring  amputation;  the 
rule  of  damages,  in  an  action  by  the  father  against  the  company, 
is  compensation  for  the  loss  of  services,  for  nursing,  and  for  sur- 
gical and  medical  attendance.'* 

^  Hogan  V.   Cregan,   6  Rob.   (N.  Y.),         ^  "Rice  v.  Nickerson,  9  Allen,  478. 
138.  4  Oakland  v.  Fielding,  48  Tcnn.  320. 

'i  IMiillips  V.  Hoyle,  4  Gray,  568. 


696  DAMAGES.  [book    V. 


CHAPTER   XYIII. 


MARINE   TORTS. 


1.  Profits  of  the  voyage.  10.  Capture. 

5.  Collisi'  n.  14.  Liability  of  master  and  owner. 

§  1.  The  damages  for  injuries  done  upon  the  water  often  turn 
upon  somewhat  peculiar  considerations,  more  especially  in  admi- 
ralty, and  demand  a  brief  separate  notice. 

§  2.  In  an  action  against  the  master  of  a  vessel,  for  breaking 
up  the  voyage  and  disposing  of  the  vessel,  the  expense  of  bringing 
home  the  vessel,  from  a  port  to  which  the  master  has  wrongfully 
navigated  her,  is  a  legal  element  of  damages.  So  are  reasonable 
damages  for  breaking  up  the  voyage ;  but  not  conjectural  or  pos- 
sible profits  of  a  whaling  voyage.^ 

§  3.  And  in  general  the  probable  profits  of  a  voyage  are  not  a 
fit  measure  of  damages  in  cases  of  marine  torts.^ 

§  4.  If  the  vessel  and  cargo  are  lost,  the  true  measure  is  their 
actual  value,  with  interest.  If  they  have  been  restoi'ed,  demur- 
rage has  generally  been  allowed  for  the  vessel,  and  interest  on  the 
value  of  the  cargo.  If  they  have  been  sold,  the  gross  amount 
of  the  sales,  with  interest ;  and  if  the  sale  was  under  disadvan- 
tageous circumstances,  or  not  at  the  place  of  the  destination  of 
the  property,  sometimes  an  addition  of  ten  per  cent.^ 

§  5.  The  whole  of  the  freight  due,  or  to  grow  due,  for  and  dur- 
ing the  voyage  which  may  be  in  prosecution  or  contracted  for 
at  the  time,  is  liable  for  loss  or  damage  by  collision.^ 

§  6.  In  a  case  of  collision,  no  vessel  having  been  hired  to  supply 
the  place  of  the  libellant's,  he  is  entitled  in  damages  to  interest, 
at  the  rate  of  six  per  cent,  upon  the  value  of  his  vessel  before  the 
collision,  until  she  was  repaired  and  fitted  to  resume  her  trips. 

1  Brown  v.  Smith,  12  Cush.  366.  3  The  Apollon,  9  ib.  362. 

2  The  Amiable  Nancy,  3  Wheat.  546  ;  4  The  Benares,  1  Eng.  L.  &  Eq.  637. 
La  Amistad,  &c.,  5  ib.  385;  13  La.  An. 

564. 


CU.    XVIII.] 


MARINE   TORTS. 


697 


Althougli  there  is  no  settled  general  rule,  as  to  whether  any  thing 
or  how  much  should  be  allowed.^ 

§  7.  In  an  action  for  negligent  collision  between  a  schooner 
and  a  steamboat,  the  towage  costs  of  materials  and  repairs,  to 
make  the  former  as  good  as  before,  and  her  exi)enses  while 
undergoing  repairs,  are  the  elements  of  damage.  The  remote 
or  consequential  damages,  growing  out  of  the  supi)osed  loss  of 
profits,  should  not  be  considered.^ 

§  8.  Where  a  steamboat  is  hired  for  towing,  and  both  vessels 
are  under  the  direction  of  a  licensed  pilot;  the  owner  of  the 
steamboat  is  not  entitled  to  damages  on  account  of  injury  sus- 
tained in  the  course  of  the  navigation,  and  not  caused  by  undue 
negligence  of  the  pilot.-'^ 

§  9.  For  injury  from  collision  to  an  old  barge,  of  peculiar 
structure  and  capacity  for  usefulness,  and  therefore  not  having 
any  established  market  value  in  the  port  where  the  collision 
occurs,  the  damages  may  be  predicated  upon  the  cost  of  repair- 
ing her."*  (a) 

§  10.  Upon  condemnation  of  a  vessel  and  cargo,  the  damages 
should  be  computed  at  six  per  cent,  on  the  amount  of  the 
appraised  value  of  the  cargo  (which  had  been  delivered  to  the 
claimant  on  bail),  including  interest  from  the  date  of  the  decree 
of  condemnation  in  the  court  below.^ 

§  11.  An    American  brig  was  unlawfully   captured   by   three 

1  The  Rhode  Island,  2  Blatch.  Ct.  3  Reeves  v.  The  Constitution,  Gilpin, 
113.                                                                    579. 

2  Minor  v.  Picayune,  13  La.  An.  5G4.  *  The  Granite,  3  Wall.  310. 

6  The  Diana,  3  Wheat.  o8. 


(a)  The  defendants  contracted  to  re- 
ceive the  plaiiitifi's  sliip  into  their  dock 
at  a  certain  time,  and  she  was  brought  to 
the  dock  in  ballast  on  a  stormy  day,  but, 
by  reason  of  an  accident  to  the  dock, 
could  not  be  let  in,  was  anchored  by  tlie 
captain  outside  the  gates,  and  at  tiie  turn 
of  the  tide  grounded  on  a  sand-bank.  In 
an  action  for  the  damage  done,  the  jurj' 
could  not  agree  whether  the  ship  could 
have  been  taken  to  a  safe  place,  but  ac- 
quitted the  captain  of  negligence.  The 
judge  having  ordered  a  verdict  for  the 
plaintitl'.  held,  that  there  should  be  a  new 
trial.  Wili^on  v.  Newport,  &c.,  Law  Rep. 
1  Exch.  177  ;  Amu.  Law  Rev.,  Oct.  180ti, 
p.  1G4. 

Defendant's  raft  collided  with,  sank, 
and  destroyed  the  cargo  of  one  of  two 
boats  of   plaiutiff,  packed  with  ice  and 


lashed  together  to  save  expense  in  run- 
ning. Held,  the  measure  of  damages 
was  the  dirterence  in  value  of  both  boats 
with  their  cargoes  before  and  after  the 
injurj^  at  the  ])lace  of  the  accident,  tak- 
ing into  consideration  all  the  circum- 
stances upon  which  the  value  dejiended  ; 
also,  that  evidence  was  adinis.'^ible,  that 
the  ex])ense  of  rnmiing  the  remaining 
boat  to  the  point  of  dcstin.'ilion  would  be 
nearly  as  much  as  that  of  rnnning  both  as 
they  were  before  the  injury  ;  also,  that, 
evidence  having  been  ailniiited  to  show 
that  tiie  saved  boat  was  frail,  it  was  com- 
petent to  prove  that  the  lost  one  was  bet- 
ter built  and  more  seaworthy  ;  also,  that 
it  was  proper  to  show  that  the  lost  boat 
had  no  value  for  any  other  iiurj)ose  than 
the  shipment  of  ice.  McCahe  r.  Knapp, 
23  Iowa,  308. 


698  DAMAGES.  [book   V. 

British  [)rivateers,  and  sent  to  Nassau.  One  of  tlie  privateers 
previously  put  on  board  of  her  sundry  valuable  goods,  to  be  car- 
ried to  Nassau.  The  British  captain  libelled  for  his  goods  ;  but 
the  owners  of  the  brig  recovered  damages  out  of  the  goods,  and 
the  rest  were  adjudged  to  be  restored. ^ 

§  12.  The  commander  of  a  ship  of  war  of  the  United  States,  in 
obeying  his  instructions  from  the  President,  acts  at  his  peril;  and, 
if  those  instructions  are  not  strictly  warranted  by  law,  lie  is  an- 
swerable in  damages  to  any  person  injured.^ 

§  13.  The  owners  of  a  privateer  are  not  liable,  in  case  of  a 
marine  trespass  upon  neutral  property,  for  exemplary  damages, 
but  only  for  the  actual  loss  or  injury  sustained.^ 

§  14.  Trover  lies  against  a  ship-owner  for  a  sale,  by  the  master, 
of  goods,  at  a  place  short  of  their  port  of  destination,  under  cir- 
cumstances not  inconsistent  with  the  general  scope  of  the  author- 
ity conferred  upon  the  master  by  the  owner.'* 

§  15.  A  cargo  of  salt  was  shipped  by  the  plaintiff  at  Liverpool 
for  Calcutta,  under  a  bill  of  lading  making  the  same  deliverable 
to  A  &  Co.,  on  payment  of  freight  there  "  as  per  charter-party." 
The  ship  sustained  damage  in  quitting  the  harbor  at  Liverpool, 
and  ultimately  became  so  leaky  that  the  master  was  compelled  to 
run  for  Bahia,  where,  finding  the  state  of  the  ship  such  as  to 
render  her  incapable  of  continuing  the  voyage,  and  being  unable 
to  forward  the  salt  to  its  destination,  he  sold  it  by  public  auction, 
remitting  the  proceeds  to  his  owner,  who  tendered  the  amount, 
after  making  deductions  for  general  average  and  expenses,  to  the 
plaintiffs.  Held,  the  master  and  owner  were  jointly  liable  for  the 
cost  price  of  the  salt,  and  the  sum  which  the  plaintiff  had  paid 
on  account  of  freight.° 

1  British  Consul   v.    Thompson,  Bee,  ^  The  Amiable  Nancy,  3  Wlieat.  546. 
141.                                                                         *  Ewbank  v.  Nutting,  7  Com.  B.  797. 

2  Little  V.  Barreme,  2  Cranch,  170.  ^  ib. 


CH.    XIX.]  JOINT,    ETC.,    DAMAGES.  (599 


CHAPTER   XIX. 

MISCELLANEOUS    POINTS;      JOINT     AND    SEVERAL     LIABILITY;     DOUBLE 
OR   TREBLE   DAMAGES;    REMITTITUR;    EXCESSIVE    DAMAGES. 

2.  Joint  mid  sever;il  damapes.  2S.  Excessive  damnfces;  new  trial. 

10.  Statiilorj' damages;  double,  treble,  (S:c.  S7.  Too  smiill  dainiiges. 

18.  Ainoimt   of   damages    claimed   iu   the  39.  Miscellaneous, 
declaration ;  remittitur. 

§  1.  A  FEW  miscellaneous  points  relating  to  damages  will  close 
our  view  of  that  important  subject. 

§  1  a.  The  measure  of  damages,  in  a  suit  by  one  joint  owner 
on  account  of  an  injury  to  the  joint  property,  where  non-joinder 
is  not  pleaded  in  abatement,  is  the  injury  to  the  interest  of  the 
plaintiff.^ 

§  2.  When  a  trespass  is  found  by  the  juiy  to  have  been  com- 
mitted severally  by  the  defendants,  who  plead  severally,  the 
damages  ought  to  be  severed  ;  but,  if  joint,  the  damages  must  be 
joint,  although  the  defendants  plead  severally.^ 

§  3.  All  torts  are  joint  and  several.  In  trespass  against  two, 
the  jury  cannot  sever  the  damages,  but  they  may  find  one  guilty 
and  acquit  the  other.^ 

§  4.  A  plaintiff,  in  an  action  for  violation  of  a  patent  right,  may 
recover  damages  against  one  of  two  defendants,  although  the 
evidence  given  did  not  apply  to  both.^ 

§  5.  In  an  action  against  several,  if  one  pleads  to  issue,  and 
another  is  defaulted,  damages  must  bo  assessed  against  both,  at 
the  same  time,  by  the  jury  who  try  the  issue.^  In  a  joint  action 
against  several,  if  the  jury  sever  the  damages,  the  plaintiff  must 
elect,  and  may  take  judgment  against  all  jointly  for  tfie  higher 
damages;  and,  if  the  amount  of  the  several  damages  exceeds  the 
damages  laid  in  the  writ,  it  will  not  vitiate  the  judgment,  if  the 

1  Walworth    v.   Abel,  52  Tenn.   238,  »  Kidpef.  Wilson,  1  Blackf  409  :  Reut- 

370.  gen  r.  Kaiiowrs,  I  Wjisli.  C.  C.  1G8. 

'-'  Kennehec   Purchase    r.    Boultnn,   4  '•I  Wash.  C.  C.  I<')8. 

Mass.  4rj  ;  Tyrrell  v.  Lockhart,  3  Blackf.  ^  Van  Sliaick  v.   Trotter,  6  Cow.  599  • 

136 ;  1  ib.  409.  Wells  v.  Keyuolds,  3  Scam.  191. 


700  DAMAGES.  [book   V. 

plaintiff  take  judgment  only  for  damages   not  exceeding  those 
laid  in  the  writ.^ 

§  6.  In  an  action  for  false  imprisonment  against  two,  where  sev- 
eral damages  are  given,  the  plaintiff  may  cure  the  irregularity 
by  entering  a  nol.pros.  against  one,  and  taking  judgment  against 
the  other.2 

§  6  a.  In  trespass  de  hon.  aspor.  against  several  persons,  dam- 
ages can  be  assessed  only  for  the  joint  acts  of  all,  though 
defaulted  by  agreement.^ 

§  7.  In  Illinois,  where  one  defendant  makes  no  defence,  and  the 
other  defendant  submits  the  cause  as  to  him  to  a  jury,  the  jury 
should  assess  damages  against  both.* 

§  8.  Where  an  injury  was  done  by  two  dogs,  together,  belong- 
ing to  several  owners,  each  owner  is  liable  only  for  the  damage 
done  by  his  own  dog.°  Mr.  Justice  Wilde  remarks :  "  This 
decision  seems  to  be  conformable  to  the  principles  of  justice,  and 
according  to  the  true  construction  of  the  statute,  by  which  the 
owner  of  any  dog  is  made  liable  for  the  damage  done  by  his  own 
dog,  and  not  by  the  dog  of  another.  And  by  separate  actions  the 
party  injured  would  have  a  full  indemnity  ;  for  the  recovery  in 
an  action  against  one  owner  would  be  no  bar  to  an  action  against 
another.  There  may  be  some  diflSculty  in  ascertaining  the  quan- 
tum of  damage  done  by  the  dog  of  each,  but  the  difficulty  cannot 
be  great.  If  it  could  be  proved  what  damage  was  done  by  one 
dog,  and  what  by  the  other,  there  would  be  no  difficulty,  and,  on 
failure  of  such  proof,  each  owner  might  be  liable  for  an  equal 
share  of  the  damage,  if  it  should  appear  that  the  dogs  were  of 
equal  power  to  do  mischief,  and  there  were  no  circumstances  to 
render  it  probable  that  greater  damage  was  done  by  one  dog 
than  by  the  other.  But  whatever  the  diflSculty  may  be,  it  can 
be  no  reason  why  one  man  should  be  liable  for  the  mischief  done 
by  the  dog  of  another."  ^ 

§  9.  Where,  in  an  action  of  tort  against  two  jointly  in  fault,  the 
jury  or  a  referee  severs  the  damages,  and  the  plaintiff  enters  a 
judgment  against  all  for  the  larger  amount,  the  judgment  will 
not  be  reversed  because  a  remittitur  of  the  lesser  amount  is  not 

1  Dougherty  v.  Dorsey,  4  Bibb,  207  ;  ^  Folper  v.  Fields,  12  Cush.  93. 
Bell  V.  Morrison.  27  Miss.  68  ;    Beal    v.          •*  Weils  v.  Reynolds,  3  Scam.  191. 
Finch,  1  Kern.  128 ;  Stone  v.  Matherby,         ^  Buddington    v.    Shearer,    20    Pick. 
3  Mon.  136.  477. 

2  Holly  V.  Mix,  3  Wend.  350.  6  lb.  479. 


CH.    XIX.]  TREBLE   DAMAGES.  701 

formally  entered  on  the  record.     The  entry  of  such  a  judgment, 
•per  se,  remits  all  claim  to  the  lesser  amount.^ 

§  10.  Trespass  is  the  proper  action  for  recovering  the  treble 
damages  given  by  the  provincial  act  of  George  II.  c.  4,  for  pulling 
down  an  uninhabited  house.^ 

§  10  a.  The  allowance  of  treble  damages  by  statute  does  not 
affect  the  princii)le,  that  damages  in  an  action  of  trespass  are  to 
indemnify  the  plaintiff  for  what  he  has  actually  suffered,  taking 
into  consideration  all  the  circumstances.  Therefore  where  A, 
having  obtained  a  verdict  and  judgment  of  restitution,  in  a  pro- 
cess for  forcible  entry  and  detainer  against  B,  brought  trespass 
to  recover  damages,  sustained  by  reason  of  his  being  kept  out  of 
possession  of  the  premises  for  the  time  intervening  between  the 
entry  and  the  restitution ;  and  on  the  trial  B  offered  in  evidence, 
for  the  purpose  of  repelling  A's  claim  for  damages,  the  record  of  a 
judgment  in  his  favor  against  A,  in  a  summary  process  to  recover 
possession  of  the  premises,  in  connection  with  evidence  that  the 
acts  complained  of  were  done  by  B,  by  virtue  of  this  judgment, 
under  a  claim  of  right:  it  was  held,  that  such  evidence  was 
admissible.'^ 

§  11.  In  actions  founded  on  the  Missouri  Statute,  entitled  "an 
act  to  prevent  certain  trespasses,"  the  jury  can  only  assess 
single  damages ;  and  when  a  proper  case  is  made  out  for  treble 
damages,  they  can  only  be  given  by  the  court.  Where  the  peti- 
tion also  contains  counts  at  common  law,  the  court  is  not  author- 
ized to  treble  the  damages  assessed  by  the  jury  in  a  general 
verdict.'* 

§  12.  In  Pennsylvania,  treble  damages  may  be  recovered  for 
cutting  timber  on  another's  land,  and  converting  it,  in  an  action 
of  trespass  qii.  claus.  el  de  hon.  aspor.^  as  well  as  in  trover,  or 
trespass  de  bon.  aspo7\  It  is  only  necessary  to  prove  that  it  was 
cut  "  without  the  owner's  consent."^ 

§  13.  To  authorize  treble  damages  and  costs,  the  count  must 
be  upon  the  statute  which  provides  for  such  damages,  and  the 
jury  must  find  for  the  plaintiff  generally,  and  assess  the  single 

1  O'Sliea  V.  Kirker,  4  Bosw.  120.  '  Bateman    v.    Goodyear,    12    Conn. 

2  Prescott  V.  Tutts,  4  Mass.  146.     See    575. 

Pierce  v.  Spring,  15  ib.  489.  *  Brewster  v.  Link,  28  Mis.  147. 

6  O'KeiUy  v.  Shadle,  33  Tenn.  489. 


702  DAMAGES.  [book    V. 

value  in  terms.  Otherwise  the  court  will  intend  that  the  jury 
found  treble  damages,  or  that  the  defendant  brought  himself 
within  the  provisos  of  the  act.^ 

§  14.  The  certificate  of  a  judge  will  not  be  received,  to  entitle 
to  treble  damages  and  costs,  in  trespass  on  a  statute.^ 

§  15.  Damages  will  not  be  doubled  in  an  action  for  malicious 
prosecution,  unless  the  (Penn.)  Act  is  recited,  and  the  injury  laid 
contrary  to  such  act.^ 

§  IG.  In  Missouri,  where  a  general  verdict  has  been  rendered 
for  damages  to  property,  without  specifying  the  value  of  the 
property,  the  court  are  not  warranted  in  giving  treble  damages 
found.* 

§  17.  No  action  lies  on  Massachusetts  Stat.  1841,  c.  125,  to 
recover  double  damage  sustained  by  reason  of  the  neglect  of  a 
railroad  to  comply  with  an  order  of  the  county  commissioners, 
requiring  them  to  construct  and  maintain  embankments,  &c.,  for 
the  benefit  of  the  owner  of  land  through  which  their  road  is  laid 
out;  unless  the  time  within  which  such  structures  are  to  be  made 
is  prescribed  in  the  order.^ 

§  18.  It  is  the  general  rule,  that  damages  cannot  be  recovered 
beyond  the  amount  claimed  or  alleged  in  the  writ  and  declaration. 
Thus  in  trespass  for  taking  goods,  where  the  declaration  alleges 
them  to  be  of  a  certain  value,  tlie  damages,  so  far  as  they  relate 
to  the  goods,  are  to  be  restricted  to  this  value.^ 

§  19.  The  rule,  that  a  plaintiff  cannot  recover  more  damages 
than  he  has  claimed  in  his  declaration,  applies  to  an  appeal  from 
a  justice's  court.^ 

§  20.  It  is  no  objection  to  a  verdict,  that  it  is  for  more  than  the 
amount  indorsed  on  the  writ,  if  it  correspond  with  the  amount 
claimed  in  the  declaration.^ 

§  21.  In  New  Jersey,  damages  may  be  awarded,  over  and  above 
the  amount  laid,  in  a  sum  equal  to  the  costs  of  suit.'-* 

§  22.  It  is  the  general  rule,  that,  where  the  damages  assessed 
by  the  jury,  or  by  the  clerk  upon  default,  exceed  those  claimed  in 

1  Benton  v.  Dale,  1    Cow.    160  ;   Liv-  5  Keith  v.  Cheshire,  &c.,  1  Gray,  ^14. 
ingston    v.    Plainer,  ib.    175 ;    Bi'own    v.          <*  Treat  v.  Barber,  7  Conn.  274. 
Bristol,  ib.  176  ;    Morrison    v.    Gross,    1          "^  Fish  v.  Dodge,  4  Denio,  311 ;  Pleas- 
Browne,  1.  ants  V.  Bank,  &c.,  3  I'2ng.  455. 

^  Benton  v.  Dale,  1  Cow.  160.  »  Williams    v.   Williams,   11    S.  &  M. 

^  Morrison  v.  Gross,  1  Browne,  1.  393. 

*  Herrou  v.  Homback,  24  Mis.  492.  ^  Allen  v.  Smith,  7  Halst.  159. 


CH.    XIX.]  EXCESSIVE    DAMAGES.  703 

the  writ,  it  is  error,  for  which  judgment  will  be  reversed  ;  but  a 
remilt'dnr  may  be  entered  for  the  excess,  and  judgment  taken  lor 
the  sum  in  the  writ.^ 

§  23.  In  Illinois,  a  judgment  exceeding  the  ad  damnum  is  erro- 
neous ;  but  the  Supreme  Court  will  not  order  a  remittitur,  but 
remand  the  case,  to  give  the  plaintiff  opportunity  to  amend.  But 
the  court  will  not  order  such  remittitur  on  error.- 

§  23  a.  Where  a  judgment  by  default  is  excessive,  a  remittitur 
of  such  excess,  after  the  petition  and  bond  for  writ  of  error  is 
filed,  and  before  the  transcript  is  returned  into  the  Supreme 
Court,  does  not  cure  the  error.^  And  where  the  plaintiff  offers 
to  remit  such  portion  of  the  damages  given  by  a  verdict  as  the 
court  may  think  proper,  but  the  findings  afford  no  data  for 
making  an  apportionment,  tlie  court  will  not  find  the  proper  dam- 
ages, but  will  order  a  new  trial  unless  the  entire  damages  are 
remitted.'^ 

§  24.  It  is  not  error  to  render  judgment  for  an  amount  exceed- 
ing the  ad  damnum,  ?i{teY  the  action,  together  with  other  claims  of 
the  plaintiff  against  the  defendant,  has  been  referred  to  arbitra- 
tors under  a  rule  of  court.^ 

§  25.  If  after  judgment,  but  during  the  same  term,  the  plaintiff 
tenders  a  remittitur  of  a  part  of  the  verdict,  the  court  may  strike 
out  the  judgment,  and  enter  a  judgment  {or  the  amount  of  the 
damages  laid  in  the  declaration.  If,  however,  judgment  is  entered 
on  the  verdict,  no  release  or  other  act  of  the  plaintiff  can  give 
validity  to  it,  but  it  will  be  reversed  as  erroneous  ;  and  the  law,  in 
that  respect,  is  not  altered  by  the  (Maryland)  Act  of  1809,  c.  153. 
But,  under  that  Act,  and  the  Act  of  1811,  c.  161,  where  judgment 
was  entered  on  such  a  verdict,  the  Court  of  Appeals  permitted  the 
plaintiff  to  release  the  excess,  and  enter  such  release  on  record ; 
and  they  amended  the  record  by  entering  a  judgment  for  the 
damages  laid  in  the  declaration.*^ 

1  Gay  V.  Raines,  21  Tex.  460 ;  Linder  2  Stew.   225  ;  Raney  v.   M'Rae.  14  Geo. 

V.  Monroe's,  88  HI.  8»8;  Tlioniae  v.  Ziisli-  o8'J  ;  Pierce  v.  Wood,  3  Tost.  51'J;  Iloyt 

lag,  25  Tex.    (Suj)]))   'lib;   Kinji  v.  Bre-  v.  Heed,  It)  Mis.  2'J4 ;  Lewis  v.   Cooke,  1 

mond,  25  Tex.  (J87;   Ilirscli  v.  Tatterson,  Har.  &  M'llen.   loU  ;  Lainliert  v.    lilack- 

23  Ark.    112;    Campbell   v.   Hancock,  7  man,  1  Blackf.  6'J  ;  Fury  r.  8lone,  2  Dale, 

Humph.  75 ;  Roberts  v.  Smith,  1  Morris,  184. 

417;  Gritlin  v.  Wiiherspoon,  8  Geo.   118;  '^  Pickering  v.  Pulsifer,  4  Gilm.  70. 

Butler  I'.   Collins,  12  Cal.   457;   llahn  v.  ^  Chrisman    v.    Davenport,    21    Tex. 

Sweazea,  2'J  Mis.  I'J.) ;   Durrell  r.  Carver,  483. 

9  Ohio  (N.  S».)  72;  Garber  v.  Morrison,  5  *  Onrpenticr  v.  Gardiner,  20  Cal.  IGO. 

Clarke,  47G  ;    Lester  v.  Frencii,  0   Wis.  *  Day  v.  Berkshire,  &c.,  1  Gray.  420. 

580;  3  Mar.  &  J.  548;   Fowlkes  v.   Web-  «  Harris  v.  JaUrey,  3   liar.  &  J.   543. 

ber,  8  Humph.  580  ;  M'Whorter  t*.  Sayre,  See  1  Morr.  417. 


704  DAMAGES.  [book   V. 

§  26.  In  the  case  of  damages  deemed  excessive,  it  is  held  proper 
to  adopt  in  actions  of  tort  the  practice  sometimes  pursued  in 
actions  of  contract,  of  allowing  the  defendant  to  remit  a  part  of 
the  damages,  instead  of  ordering  a  new  trial  absolutely.  In  such  a 
case,  the  motion  for  a  new  trial  may  be  denied,  if,  within  a  time 
appointed  by  the  court,  a  stipulation  is  given  by  the  defendant  to 
reduce  the  damages  to  a  sum  deemed  by  the  court  to  be  reason- 
able ;  and,  if  such  a  stipulation  is  not  given,  a  new  trial  may  be 
awarded,  with  costs.^ 

§  27.  In  a  late  case  in  New  Hampshire,  the  following  distinc- 
tions are  taken.  Where  the  verdict  is  for  a  sum  larger  than  the 
ad  damnum,  the  difficulty  may  always  be  remedied  by  entering  a 
remittitui'  for  the  excess.  The  ad  damnum  may  be  amended  after 
verdict,  when  it  is  apparent  from  the  declaration  itself  that  it  was 
left  blank,  or  too  small  a  sum  inserted  through  mistake  or  inad- 
vertence only  ;  and  if  there  has  been  a  full  and  fair  trial  on  the 
merits,  which  appear  from  the  declaration,  without  any  knowledge 
by  either  party  of  the  defect,  judgment  may  be  rendered,  after 
amendment,  without  a  new  trial.  If  it  does  not  appear  that  the 
defendant  had  no  knowledge  of  the  defect,  the  amendment  may 
be  made,  but  a  new  trial  must  be  granted,  to  give  him  an  oppor- 
tunity to  contest  the  enlarged  demand.  But  in  actions  sounding 
in  damages  only,  where  the  plaintiff  deliberately  estimates  the 
injury  to  himself,  and  there  is  only  a  difference  in  judgment 
between  the  jury  and  him,  as  to  the  nature  and  aggravation  of 
the  injury  ;  no  amendment  increasing  the  ad  damnum  to  cover  the 
verdict  will  be  allowed,  and  the  only  remedy  for  an  excessive 
verdict  is  by  a  remittitur.  Yet  the  court,  in  their  discretion,  may 
permit  the  ad  damnum  to  be  increased  in  any  case  after  a  full 
and  fair  trial,  upon  the  claim  of  an  appeal  or  review  by  the 
defendant.^ 

§  28.  The  amount  of  damages  awarded  by  a  jury  is  a  very 
frequent  ground  of  application  for  new  trial.  Indeed  this  is  the 
form,  in  which  a  large  proportion  of  the  rules  stated  in  the  fore- 
going pages  have  come  up  for  discussion  and  adjudication.  It  is 
foreign  from  the  plan  of  the  present  work,  to  do  more  than  pre- 
sent a  very  brief  view  of  excessive  damages,  as  a  cause  for  setting 
aside  a  verdict. 

1  Collins    V.    Albany,   &c.,    12  Barb.  -  Taylor  v.  Jones,  42  N.  H.  25. 

492. 


CH.    XIX.] 


EXCESSIVE   DAMAGES. 


705 


§  29.  A  new  trial  may  be  granted  for  excessive  damages ;  but 
in  general  tliis  is  a  ground  which  courts  regard  with  great  cau- 
tion ;  (a)  more  especially  in  the  case  of  personal  torts. ^  Where 
there  is  no  certain  measure  of  damages,  to  justify  a  new  trial  on 
this  ground,  it  is  held  that  tliere  must  be  evidence  of  prejudice, 
passion,  or  corruption  in  the  jury;  or  evidence  compelling  the 
conviction,  that  they  acted  under  the  influence  of  a  perverted 
judgment;^  —  and  these  requisitions  are  applied  with  peculiar 
strictness  to  applications  for  a  second  new  trial.^ 

§  30.  In  England,  the  court  will  not  set  aside  a  verdict  as 
against  the  weight  of  evidence,  when  the   damages  are   under 

§  31.  It  is  held  that  the  jury  may  find  greater  damages  than 
the  alleged  value  of  the  property,  not  exceeding  the  ad  damnum.^ 

§  32.  Under  special  circumstances,  damages  may  greatly  exceed 
the  price  for  which  the  property  unlawfully  taken  was  sold. 
As  where,  in  trover  for  machinery  in  a  factory,  damages  were 
given  to  three  times  the  amount  which  it  brought  at  the  sheriff's 
sale.** 

§  32  a.  "  A  person  who  has  acquired  the  possession  of  goods, 
and  who  puts  it  out  of  the  power  of  the  owner  to  show  the  qual- 


1  Cook  V.  Hill,  3  Sandf.  341 ;  Gilbert  v.         »  Chambers  v.  Robinson,  1   Str.  691 ; 
Burtensliaw,  Cowp.  230;  Smitli  i;.  Wood-     Clerk  v.   Udall,  2  ISalk.  049;  Macon,  &c. 


fine,  1  C.  15.  (N.  S.)  GGl. 

'^  Treanor  u.  iJonaiioe,  9  Cush.  228 ; 
Collins  V.  Albany,  &c.,  12  Barb.  492; 
Goodall  V.  Tliurnian,  1  Head,  209;  AVells 
V.  Sawyer,  21  Mis.  354 ;  Payne  v.  The 
Pacific,  &c.,  1  Cal.  33 ;  Clapp  v.  Hudson, 
&c.,  19  Barb.  4tjl. 


V.  Winn,  26  Geo.  250. 

■*  Tariingtou  u.  ISpencer,  4  Hurl.  &  Nor. 
859. 

5  Terrell  v.  McKinny,  26  Geo.  447. 

•*  Ayer  v.  Barllett,  9  I'ick.  156. 


(a)  A  verdict  of  four  thousand  five 
hundred  dollars,  lor  an  injury  to  the  plain- 
tiff causinji;  the  loss  of  an  arm,  occasioned 
by  negligence,  will  not  be  deemed  exces- 
sive. Mentz  V.  Second,  2  Itob.  {N.  Y.) 
356. 

In  an  action  against  a  railway  for  an 
injury-  caused  hy  negligence,  wiiicli  con- 
fined tlie  i)iaiMiillto  his  bed  for  a  month 
or  six  weeks,  and  so  destroyed  his  eye- 
sight, that  in  the  opinion  of  physicians 
■who  examiiicil  him  he  would  never  re- 
cover it;  a  verdict  of  tiirce  thousand  dol- 
lars was  belli  not  excessive.  2vew  Jersey 
V.  West,  3  V'room,  91. 

Where  a  colored  woman  was  forcibly 
ejected  from  a  streetcar  by  the  conductor, 
and  the  coma  below  awarded  her  $750 


for  damages  ;  held,  there  being  no  evi- 
dence of  malice,  the  damages  were  exces- 
sive.    Turner  v.  North,  34  Cal.  594. 

W^here  no  special  damage  was  alleged 
or  proved  by  the  plaintifl'  upon  the  breach 
of  a  railroad  passenger  contract,  and  the 
evidence  was  only  tliat  he  was  put  out  of 
the  defendant's  car  at  a  point  about  twelve 
miles  from  his  destination,  and  live  miles 
from  the  place  of  departure  ;  held,  a  ver- 
dict for  five  iiunthed  doliars  damages  was 
greatly  disproportionate  to  tiie  injury. 
Tarbell  v.  Central,  34  Cal.  616. 

Two  hundred  and  fitly  dollars  is  not 
an  unreasonable  sum  to  compensate  for 
an  injury  to  real  estate,  which  lessens  its 
yearly  rental  .5IOO.  Smith  v.  hcit,  50 
Barb.  612. 


45 


706  DAMAGES.  [book   V. 

ity  and  value  of  the  property  by  any  artifice  or  concealment,  may 
be  held  liable  for  the  value  of  the  best  quality  of  such  goods."  ^ 

§  33,  It  is  the  prevailing  rule,  that  a  new  trial  will  not  be  granted 
for  excessive  damages,  where  the  presiding  judge  is  satisfied  with 
the  verdict ;  though  his  dissatisfaction  is  not  regarded  as  conclu- 
sive against  it.^ 

§  34.  It  is  held  in  a  late  case,  that,  in  an  action  for  a  personal 
injury  arising  from  indisputable  negligence,  the  injury  being 
permanent,  and  recovery  apparently  hopeless,  the  court  will 
not  reduce  the  damages  if  the  judge  is  not  dissatisfied  with  the 
verdict.^ 

§  35.  It  is  a  strong  consideration  against  the  objection  to  a 
verdict  of  excessive  damages,  that  the  defendant  had  it  in  his 
power  to  prove  the  circumstances  by  which  the  amount  should  be 
regulated,  while  the  plaintiff  was  necessarily  unable  to  do  it.  As 
in  an  action  for  violation  of  a  patent ;  the  damages  depending 
upon  the  amount  of  the  defendant's  manufacture  and  sales.^ 

§  36.  In  a  late  English  case,  Lord  Campbell  suggested  the  point 
as  a  doubtful  one,  whether  a  verdict  against  two  defendants  could 
be  set  aside,  on  the  ground  that  the  damages  were  excessive  as  to 
one  of  them  only ;  or  whether,  on  the  other  hand,  as  claimed  for 
the  plaintiff,  "  the  measure  of  damages  ought  to  be  the  sum  which 
ought  to  be  awarded  against  the  most  guilty."  ° 

§  36  a.  It  is  held  in  New  York,  that,  when  the  damages  given 
are  wholly  unwarranted  by  the  evidence,  the  Court  of  Common 
Pleas  has  power,  on  appeal,  instead  of  reversing  the  judgment,  to 
make  such  abatement  as  appears  reasonable,  and  sufi"er  the  plain- 
tiff to  retain  judgment  for  the  residue,  if  he  so  elects.^ 

§  36  b.  Where  the  jury  have  given  excessive  damages,  the 
court  may  order  that  there  shall  be  a  new  trial,  unless  the  plain- 
tiff within  a  given  time  remits  the  excess,' 

§  36  c.  In  an  action  by  a  liusband  against  a  stage-company,  for 
negligently  causing  the  death  of  his  wife  and  infant,  a  judgment 

1  Per  Bell,  J.,  Bailey  v.  Shaw,  4  Fost.  *  Stephens  v.  Felt,  2  Blatch.  37. 

801.  5  Gregory  v.  Slowman,   1  Ell.  &  BI, 

2  Bennett  v.  Alcock,  2  T.  R.  166  ;  Tul-     369. 

lidge  V.   Wade,  3   Wils.    18  ;   Kedshaw  v.  •>  Lamotte  v.  Archer,  4  E.  D.  Smith, 

Brooks,  2  ib.  403  ;  Britten  v.  South,  &c.,  46.     See  Fitzgerald  v.  Boulat,  13  La.  An, 

3  H.  &  N.  963  ;  Duberley  v.    Gunning,  4  116;  Jones  v.  Pereira,  ib.  102. 
T.  R.  651.  ^  Harrell  i-.  Durrance,  9  Florida,  49,0; 

3  Britton  v.   S.   Wales,  &c.,  27  L.  J.  Brockman  v.  Berryhill,  16  Iowa,  183. 
Exch.  355. 


CH.    XIX.]  INSUFFICIENT   DAMAGES,   ETC.  707 

for  $8000  was  held  to  be  excessive,  and  a  remittitur  of  all  except 
$5000  was  entered.! 

§  3(3  d.  Where  a  judgment  was  for  the  return  of  property  to  a 
defendant  in  replevin,  or  in  default  for  the  payment  of  a  sum 
which  was  too  large  ;  held,  the  judgment  might  be  modified  by 
inserting  the  proper  sum  when  it  could  be  determined  by  mere 
computation,  if  the  defendant  would  remit  the  balance.^ 

§  37.  Where  the  amount  of  damages  is  matter  of  computation, 
as  in  most  cases  of  debt  or  contract,  it  is  held  a  ground  of  new 
trial,  that  the  damages  are  too  small.  And  the  same  ground  has 
been  sometimes  recognized,  for  the  same  reason,  in  actions  for 
tort.  As  where  trespass  is  brought  for  entering  a  house  and 
taking  property,  and  the  jury  find  for  the  plaintili"  less  than  the 
value  of  the  property.^  So  where,  in  an  action  for  injury  by 
negligence,  the  jury  found  a  verdict  for  the  plaintiff  with  b'c?. 
damages,  though  it  appeared  he  had  paid  M.  10s.  for  medical 
attendance  rendered  necessary  by  the  injury.^  And  a  new  tiial 
has  been  granted  for  the  same  cause  in  actions  relating  to  waste, 
libel,  slander,  assault,  and  injury  upon  a  railroad.^ 

§  38.  But,  on  the  other  hand,  it  was  held  no  ground  for  a  new 
trial,  in  an  action  for  assault  and  false  imprisonment,  that  the 
plaintiff  had  incurred  an  expense  of  11.  145.  in  procuring  his  dis- 
charge from  custody,  and  the  jury  awarded  him  only  a  farthing.^ 
So  where,  in  an  action  against  a  bailee  for  injury  to  and  destruc- 
tion of  goods,  the  jury  returned  a  verdict  for  the  plaintiff,  with 
nominal  damages;  held,  it  was  no  ground  for  anew  trial,  that, 
according  to  the  evidence,  tlio  damage,  if  any,  must  have  been 
more  than  nominal,  and  that  there  was  uncontradicted  evidence 
of  a  loss  of  goods  to  the  extent  of  11.'  So  a  new  trial  was  refused 
in  an  action  of  trespass,  for  taking  the  plaintiff  before  a  magis- 
trate upon  an  unfounded  charge  of  felony,  though  a  question  of 
character  was  involved,  and  the  verdict  was  for  only  a  farthing 
damages.^  And  the  fault  of  the  plaintiff  may  prevent  a  new  trial 
for  small  damages;  as  where  very  great  bodily  injury  was  sus- 

1  Sherman  v.  Western,  24  Iowa,  615.        v.  Ward,  3   Hand.   52 ;   Bacot  v.   Keilli,  2 

2  Dodjje   I'.  Cliandler,  13   Minn.    114;     Bay,  400  ;   Kobbins   v.   Tlie  Hudson,  &c., 
La  Crost^e  v.  Robertson,  ib.  2'Jl.  7  Bosw.  1. 

a  Torieiu-;  r.  Hazel,  Harper,  332.  «  Bradlaugli    c.    Kdwards,    11    C.    B. 

*  Ted.l  V.  l)ou«las,  5  Jar.  (N.  S.)  1029,  (N.  S.)  377. 

C.  P.  ;  5  C.  B.  (N.  S.)  805.  7  M„,styn  v.  Coles,  7  H.  &  N.  872;   31 

5  Weeding  v.  Mason,  2   C.   B.   (N.  S.)  L.  J.  Kxcli.  151. 

382;  Englisii  i".   Clerry,   3  Hill  (S.   C),  8  Apps  v.  Day,  26  Eng.  L.  &  Eq.  335. 
27y ;  Levi  v.  Milue,  4"  Bing.  1Mb  ;  Kixey 


708  DAMAGES.  [book   V.    CH.    XIX.] 

tained  in  being  run  over  by  a  dray,  the  plaintiff  having  been  in 
fault,  though  less  so  than  the  defendant,  and  the  verdict  being  for 
fifty  dollars.^ 

§  39.  If  the  jury  find  that  the  plaintiff  is  not  entitled  to  dam- 
ages, erroneous  instructions  as  to  their  amount  furnish  no  ground 
of  new  trial,''^ 

§  40.  Under  an  ordinance  of  a  city,  requiring  a  committee  of 
the  city  council,  upon  laying  out  a  drain,  to  report  the  names  of 
land-owners,  with  the  amount  of  damages  allowed  each ;  with 
reference  to  the  validity  of  the  proceedings,  a  report  of  the  names 
of  all  abutters,  not  mentioning  any  damages,  is  a  sufficient  award 
that  no  one  is  entitled  to  damages.  It  might  be,  that  they  all 
waived  their  claims  to  damages  ;  or,  if  not,  then  any  party  would 
have  his  legal  remedy,  as  upon  an  award  that  he  was  not  entitled 
to  damages.'^ 

§  41.  Unless  it  appears  that  a  bill  of  exceptions  reports  all  the 
evidence  relating  to  damages,  the  court  above  will  not  review  the 
assessment  of  the  jury,  for  want  of  evidence  of  actual  or  special 
damages.* 

1  Flanders  v.  Meatli,  27  Geo.  358.  3  Hildreth  v.  Lowell,  11  Gray,  34.3. 

2  Pope  V.  Machias,  &c.,  52  Maiue,  535.  *■  M'Intyre  v.  Park,  11  Gray,  102. 


APPENDIX. 


FORMS   AND   PIIECEDENTS  OF   DECLARATIONS  AND   PLEAS   IN 
ACTIONS  FOR  TORTS. 


The  following  forms,  though  not  always  complete,  are  sanctioned 
by  the  cases  to  which  they  respectively  refer,  and  in  wliicii  the 
sufficiency  of  the  pleadings  was  the  direct  point  of  decision.  The 
cases  are  mostly  recent,  and  may  sometimes  turn  in  part  upon 
local  statutes.  The  statutory  law,  however,  in  simplifying,  as  it 
has  done  so  extensively,  the  rules  and  forms  of  pleading,  has 
everywhere  proceeded  upon  substantially  the  same  basis.  Hence 
the  forms,  and  the  cases  which  accredit  them,  are  believed  to  be 
of  universal  applicability,  and  reasonably  safe  guides  for  the 
practitioner  under  the  same  or  similar  circumstances,  (a) 

TORT   AND    CONTRACT.  —  FRAUDULENT   SALE. 

The  plaintiff  bought  of  the  defendant,  for  Cnaming  the  sum), 
being  a  sound  price,  (naming  the  number)  hogs,  and  said  hogs 
had  the  disease  of  cholera.  And  the  defendant  represented  said 
hogs  to  be  sound  and  healthy,  knowing  such  representations  to  be 
untrue.  And  the  plaintiif  bought  said  hogs  relying  iipon  said 
representations,  and  unable  by  reasonable  diligence  to  ascertain 
that  they  were  false.  —  22  Ind.  257. 

FRAUDULENT    PURCHASE. 

The  plaintiff  sold  and  delivered   the  defendant   goods   to   the 

(a)  Tlie  incidental  requisites  of  plead-  pensed  witl)  by  express  statute.     And  the 

int:  —  such  as  name,  number,  time,  and  citnlinns  will  fail  of  tlieir  chief  purpose,  if 

place,  and   the   formal   introductory  and  in  actual  practice  they  do  not  lead,  out  of 

closing  averments  —  are  of  course  to  be  ahuuddut  caution,  to  an  inspection  of  the 

added,  unless,  as  is  now  often  done,  dis-  entire  forms  as  set  out  in  tiie  Reports. 


710  APPENDIX. 

amount  of,  &.G.,  on  a  credit  of  six  montlis.  And  tlie  defendant 
was  insolvent  at  the  time  of  said  sale,  and  purchased  the  goods 
without  any  intent  to  pay  for  them  and  with  the  intent  to  defraud 
the  plaintilf  of  their  value,  and  by  reason  of  said  fraud  the 
defendant  became  liable  to  pay  for  the  goods  immediately  upon 
their  delivery.  —  27  Barb.  652.  (While  this  form  of  declaring  is 
doubtless  sufficient,  there  maybe  more  doubt  as  to  the  rule  of  law 
upon  which  the  action  is  founded.) 

INDORSEE    AGAINST    FRAUDULENT    INDORSER    OF    NOTE. 

The  defendant,  with  intent  to  deceive  the  plaintiff,  falsely  rep- 
resented that  said,  &c.  (the  maker  of  the  note),  was  solvent,  and, 
relying  on  said  representation,  the  plaintiff  accepted  said  note.  — 
35  Mis.  483. 

FALSE    REPRESENTATION    AS    TO    A    MORTGAGE. 

The  defendant  represented  that  said  mortgage  was  good,  and  a 
valid  security  for  payment  of  said  note,  and  the  plaintiff  supposed 
and  verily  believed,  at  the  time  he  bought  the  same  as  aforesaid, 
the  said  mortgage  to  be  good,  and  that  it  was  a  valid  and  suffi- 
cient security. —  18  Wis.  196. 

FALSE    RECOMMENDATIONS. 

The  plaintiff  purchased  of  the  defendant  a  note  against  one  (A) 
whom  the  defendant  affirmed  to  be  a  person  of  good  credit,  the 
defendant  well  knowing  said  affirmation  to  be  false ;  and  the 
defendant  was  in  fact  poor,  and  the  note  was  of  no  value, 
whereby  the  defendant  deceived  and  defrauded  the  plaintiff. — 
8  Fost.  118. 

The  defendant  (a  director  of  a  bank)  falsely  and  fraudulently 
represented  that  the  stock  of  said  bank  was  worth  par,  when  in 
truth  said  stock  was  worthless;  the  defendant  knowing  that  said 
stock  was  not  worth  par,  and  making  said  representation  with 
intent  to  induce  the  plaintiff  to  purchase  said  stock. —  3  Bosw. 
346. 

MISCELLANEOUS    CASES    OF    FALSE    REPRESENTATION. 

The  defendant,  employed  as  architect  by  A  and  others  to  super- 
intend the  building  of  a  church,  falsely  and  fraudulently  repre- 


TORT    AND    CONTRACT.  711 

sented  and  pretended  that  lie  was  authorized  by  A  to  order,  and 
did  order,  stone  of  the  plaintiffs  for  the  building  of  said  church, 
for  and  on  account  of,  and  to  be  charged  to  A;  and  the  plaintiffs, 
relying  on  that  representation,  and  believing  that  the  defendant 
had  authority  from  A  to  order  the  stone  on  his  account,  delivered 
the  same,  and  the  same  was  used  in  the  building  of  the  church  ; 
whereas,  in  truth  and  in  fact,  the  defendant  was  not,  as  he  well 
knew,  authorized  so  to  order  the  said  stone.  And,  A  refusing  to 
pay  for  the  stone,  the  plaintifls,  trusting  in  tlie  defendant's  repre- 
sentation, sued  A  for  the  price,  and  failed  in  their  action,  and  had 
to  pay  A's  costs,  and  also  the  costs  incurred  by  their  own  attor- 
neys. —  37  Eng.  L.  &  Eq.  275. 

The  defendants  falsely  and  fraudulently  deceived  the  plaintiff  in 
this,  that  they,  as  brokers  of  the  plaintiff,  employed  by  him  to 
purchase  oil,  with  the  fraudulent  intention  of  deceiving  and  injur- 
ing the  plaintiff,  falsely  represented  to  him  that  they  had  "  pur- 
chased for  him  twenty-five  tuns  of  palm-oil,"  to  arrive  by  the,  <fec., 
at  the  price  of,  &c.,  per  tun  ;  whereas  in  fact  the  defendants  pur- 
chased the  oil  on  the  terms  that  the  said  twenty-five  tuns  were 
sold,  and  would  be  delivered  to  the  plaintiif  after,  and  subject  to, 
the  prior  delivery  of  eight  hundred  tuns  of  palm-oil  from  the 
said  vessel.  And  said  vessel  arrived  with  less  than  eight  hun- 
dred tuns,  in  consequence  whereof  said  twenty-five  tuns  were 
not  delivered  to  the  plaintiff.  (Special  damages.) — 20  Eng.  L. 
&  Eq.  467. 

The  defendants  having  brought  a  bill  for  the  forclosure  of  a 
mortgage  executed  to  them  by  the  plaintiff,  to  secure  a  note,  it  was 
agreed  between  the  plaintiff  and  defendants,  before  the  decree 
thereon,  that  the  time  for  redeeming  should  be  limited  to  the  first 
Monday  of  January,  1851  ;  but  the  defendants  procured  a  decree 
thereon,  that  it  should  be  redeemed  previous  to  said  day,  namely, 
on  or  before  the  first  day  of  January,  1851.  And  after  said  decree 
was  passed,  the  defendants  falsely  and  fraudulently,  and  for  the  pur- 
pose of  preventing  the  plaintiff  from  redeeming  within  the  time  so 
limited,  represented  to  the  plaintiff,  and  thereby  induced  him  to 
believe,  that  the  time  so  limited  was  the  first  Monday  of  said  Jan- 
uary. And  under  said  belief,  and  under  an  agreement  between 
the  plaintiff  and  the  defendants,  made  after  said  first  day  of  Jan- 
uary, that  the  plaintiff  might  redeem  on  said  first  Monday  of  Janu- 


712  APPENDIX. 

arj,  the  plaintiff  omitted  to  redeem  until  after  said  first  day  of 
January,  but  was  prepared  and  offered  to  the  defendants  to  do  so 
on  said  first  Monday,  and  on  that  day  tendered  to  the  defend- 
ants the  amount  due,  which  they  refused  to  receive  ;  and  by 
means  thereof  he  was  foreclosed,  and,  in  order  to  have  the  fore- 
closure opened,  and  to  obtain  the  privilege  of  redeeming,  was 
obliged  to,  and  did,  bring  his  application  therefor  to  said  court, 
on  which  he  was  allowed  to  redeem;  and,  in  consequence  of  said 
wrongful  conduct  of  the  defendants,  he  was,  in  the  prosecution  of 
said  application,  subjected  to  great  expense,  trouble,  vexation,  and 
loss  of  time.  (The  formal  preamble,  time,  amounts,  &c.,  are  to  be 
added.)— 23  Conn.  134. 

PLEAS    OP    FRAUD    AND    MISREPRESENTATION. 

To  an  action  upon  a  note  made  to  a  railroad  corporation.  Said 
note  was  given  for  a  subscription  to  stock  in  said  corporation, 
and  through  misrepresentations  of  one,  <fec.,  as  to  the  amount  of 
stock  taken  and  the  time  when  said  railroad  would  be  finished, 
said  misrepresentations  being  made  by  authority  of  the  plaintiffs, 
and  known  by  them  to  be  false.  —  31  111.490.    (But  see  the  case.) 

To  an  action  upon  a  written  instrument.  Said  writing  was 
obtained  from  the  defendants  by  fraud,  covin,  and  misrepresenta- 
tion of  the  plaintiff.  —  2  Met.  (Ky.)  584. 

To" an  action  on  a  note  given  for  the  price  of  land.  The  plain- 
tiff falsely  and  fraudulently  represented,  that  there  was  on  the 
land  sufficient  material  to  build  a  barn  (describing  the  dimen- 
sions, quality,  &c.),  being  lumber  of  the  value  of,  &c.,  whereas 
the  material  and  lumber  actually  on  the  land  was  worth  only,  &c., 
and  the  defendant  was  obliged  to  expend,  <fec.,  in  addition  to  the 
sum  last  named,  for  the  purpose  of  building  said  barn.  — 14  Cab 
112. 

To  an  action  on  a  note  for  goods.  Said  note  was  given 
for  the  last  instalment  on  a  stock  of  goods,  purchased  by  the 
defendants  from  the  plaintiff,  the  plaintiff  representing  said  stock 
to  be  worth  $3500,  and  that  it  would  invoice  that  sum  or  more. 
And  the  defendants  were  ignorant  of  the  amount  and  value  of 
said  stock,  and  requested  of  the  plaintiff  an  invoice,  but  the 
plaintiff  said  he  had  no  time  to  make  it.     And  the  purchase  was 


NEGLIGENCE.  713 

made  upon  said  representation,  the  plaintifT  knowinp:  tlie  same  to 
be  false.  And  said  goods  invoiced  and  amounted  only  to  the  sum 
of  $1500.-22  Ind.  233. 

DECLARATIONS,  ETC.,  FOR   NEGLIGENCE.  —  INJURIES   TO    LAND,  ETC. 

The  reservoir  of  the  defendants,  by  reason  of  some  fault  in  its 
construction,  or  some  carelessness  or  mismanagement  on  the  part 
of  the  defendants,  broke  away,  &c.  —  10  Cal.  413. 

The  defendant  wrongfully  and  improperly,  and  without  leaving 
any  proper  or  sufficient  pillars  or  supports,  worked  coal-mines 
under  and  contiguous  to  the  close  of  the  plaintiff,  and  dug  for 
and  got  and  moved  the  coals,  minerals,  earth,  and  soil  of  and  in 
said  mines,  whereby  the  soil  and  surface  of  said  close  sank  in, 
cracked,  swagged,  and  gave  way.  —  1  Eng.  L.  &  Eq.  241. 

The  defendant,  contriving  and  maliciously  intending  to  injure 
and  aggrieve  the  plaintiff,  dug  up  the  soil  of  a  contiguous  lot, 
whereby  the  foundation  wall  of  the  plaintiff's  house  was  injured, 
&c.  — 17  John.  92. 

A  messuage  and  land,  the  reversion  whereof  belonged  to  the 
plaintiff,  were  supported  by  the  land  adjoining;  yet  the  defendant 
wrongfully  and  negligently  dug  and  made  excavations  in  the  land 
adjoining,  without  sufficiently  shoring  the  messuage  and  land, 
and  thereby  depi'ived  them  of  their  support,  whereby  they  sunk 
and  were  injured. —  4  Ilurl.  &  N.  153. 

INJURIES    TO    AND    BY   ANIMALS. 

The  plaintiff's  animal  (describing  it)  being  upon  the  track  of 
the  defendant's  railroad,  was  there  negligently  and  carelessly  run 
over  and  killed  by  their  train.  —  35  N.  H.  356. 

The  defendant  wrongfully  and  knowingly  kept  a  horse  accus- 
tomed to  bite  mankind. —  10  Cash.  509. 

COLLISIONS    BY    LAND    AND    WATER. 

The  defendant  drove  his  cart  against  the  plaintiff's  horse  with 


714  APPENDIX. 

force  and  violence,  by  and  through  the  mere  negligence,  inatten- 
tion, and  want  of  proper  care  of  the  defendant.  —  2  N.  Rep.  117. 

Ti)e  defendant  run  down  tiie  plaintiff's  ship,  by  the  negligence 
and  unskilfulness  of  the  defendant  in  managing  his  vessel.  —  8  T. 
R.  188. 

COLLECTION   OF   DEBTS. 

The  defendant  undertook  for  and  with  the  plaintiff  to  collect  a 
judgment  against,  &c.,  and  promised  out  of  the  proceeds  of  said 
judgment,  when  collected,  to  pay  the  plaintiff,  &c.,  but  has  failed 
and  omitted  to  do  so  from  mere  neglect.  —  25  Ala.  216. 

The  defendant  did  obtain  judgment  for  the  plaintiff  on  said 
note  and  accounts,  and  did,  without  the  consent  of  the  plaintiff, 
and  contrary  to  his  express  directions,  undertake  to  settle  and 
adjust  such  claims  with  said  A,  and  did  not  follow  the  instruc- 
tions of  the  plaintiff;  but  so  carelessly  and  negligently  conducted 
the  said  trust,  by  taking  the  note  of  said  A  payable  to  himself 
for  the  amount  of  the  judgment  and  execution  recovered  against 
said  A,  that  the  said  debt  has  never  been  paid  or  collected,  and 
the  plaintiff  has  wholly  lost  the  attachment,  &c.  —  2  Cush.  316. 

ANSWER     OR     PLEA     TO     A     DECLARATION     AGAINST     SHIP-OWNERS     FOR 
NEGLIGENTLY    AND    CARELESSLY    STOWING,    ETC. 

Salt-cake  was  a  corrosive  substance,  rotting  casks  and  other 
substances  being  in  contact  with  it,  which  the  plaintiffs  knew,  but 
which  the  defendants,  without  any  default  on  their  part,  did  not 
know,  and  could  not  be  reasonably  expected  to  know,  until  after 
the  happening  of  the  damage.  And  it  was  the  duty  of  the  plain, 
tiffs  to  have  informed  the  defendants  of  the  destructive  nature  of 
salt-cake,  in  order  to  its  proper  and  safe  stow^age  by  them.  But 
the  plaintiffs  did  not  so  inform  the  defendants,  or  ascertain  that 
they  were  so  informed,  but,  on  the  conti-ary,  negligently  deliv- 
ered the  salt-cake  to  the  defendants  in  bulk,  and  thereby  and 
otherwise  represented  to  the  defendants  and  induced  them  to 
believe,  and  they  did  reasonably  believe,  that  the  said  salt-cake 
might  be  placed  in  contact  with  casks,  &c.  And,  under  this  rea- 
sonable belief,  and  induced  as  aforesaid,  the  defendants  stowed 
the   salt-cake  in   contact  with  and  between  and  amongst  casks 


ASSAULT,    ETC.  715 

of  salt  provisions,  beinjr,  as  they  reasonably  believed,  a  safe  and 
proper  mode  of  stowing  the  same,  and  afterwards,  and  without 
default  of  the  defendants,  the  said  salt-cake  corroded,  rotted,  and 
destroyed  the  said  casks,  and  the  hoops  thereof,  and  tiie  brine 
therefrom  damaged  the  salt-cake,  and  caused  the  default  in  the 
delivery  thereof  complained  of  in  the  declaration.  —  5  C.  B.  (N. 
S.)  149. 

Answer  to  an  action  for  damages  from  falling  into  a  ditch,  which 
the  defendants  were  alleged  to  have  left  open,  without  any  fault 
or  want  of  care  on  the  part  of  the  plaintiff.  The  defendant  denies 
that  the  plaintiff,  without  any  fault  or  want  of  care  on  his  part, 
did  fall  therein.  — 18  N.  Y.  119. 

Answer  to  an  action  for  injury  caused  by  a  shaft.  The  defend- 
ants admit  that  the  shaft  was  not  sufficiently  fenced,  but  allege 
that  the  plaintiflf,  contrary  to  the  express  command  of  the  defend- 
ants, and  knowing  that  it  was  dangerous  to  meddle  with  the  shaft, 
took  hold  of  it  and  set  it  in  motion,  whereby,  and  not  by  reason 
of  the  negligence  of  the  defendants,  the  plaintiff  was  injured.  — 
3  Allen,  382. 

ASSAULT    AND    BATTERY. 

The  defendant,  on,  &c.,  drove  a  coach  over  the  wife  and  bruised 
her,  by  reason  whereof  the  husband  laid  out  divers  sums  of  money 
for  her  cure,  et  alia  enormia,  etc.  —  11  Mod.  264. 

Plea,  in  trespass  for  assaulting  and  turning  the  plaintiff  out  of 
a  police-office.  Two  of  the  defendants,  being  justices  of  the 
peace,  were  assembled  in  a  police-office  to  adjudicate  upon  an 
information,  and  were  proceeding  to  hear  and  determine  the 
same,  when  the  plaintiff  (being  an  attorney)  entered  with  the 
informer,  not  as  his  friend  or  as  a  spectator,  but  for  the  avowed 
purpose  of  acting  as  his  attorney  and  advocate;  and  as  such, 
without  the  leave  and  against  the  will  of  the  justices,  was  taking 
notes  of  the  evidence  of  a  witness,  and  acting  and  taking  part 
in  the  proceedings,  as  an  attorney  or  advocate  on  behalf  of  the 
informer ;  and  the  defendants  stated  to  the  plaintiff,  that  it  was 
not  their  i)ractice  to  sufi'er  any  person  to  appear  and  take  part  in 
any  proceedings  before  them  as  an  attorney  or  advocate,  and 


716  APPENDIX. 

requested  him  to  desist  from  so  doing;  and,  although  they  were 
willing  to  permit  tlie  plaintiff  to  remain  in  the  office  as  one  of  the 
public,  yet  he  would  not  thus  desist,  but  asserted  his  right  to  be 
present,  and  to  take  such  part;  and  unlawfully,  and  against  the 
will  of  the  justices,  continued  in  the  office,  taking  part  and  act- 
ing as  aforesaid,  in  contempt  of  the  justices  ;  whereupon,  by  order 
of  the  above  two  defendants,  the  other  defendants  turned  the 
plaintiff  out  of  the  office. —  2  B.  &  Ad.  663. 

Plea  to  an  action  for  assault  and  battery.  The  defendants 
gently  laid  hands  on  the  plaintiff  to  arrest  him  for  felon}^,  and  did 
no  more  injury  than  was  necessary  in  effecting  the  arrest.  —  7 
Dana,  453. 

To  an  action  of  trespass  qtiare  dausicm,  and  for  an  assault  and 
battery.  The  plaintiff  had  felled  a  tree  across  a  navigable  stream, 
down  which  the  defendants  were  conducting  a  boat,  and  to  enable 
them  to  proceed  it  was  necessary  to  remove  the  obstruction,' 
and  the  plaintiff  stood  upon  it  with  an  axe,  threatening  to  resist 
the  removal ;  and  they  therefore  gently  laid  hands  upon  him,  &c. 

—  7  Dana,  428. 

The  public  had  a  prescriptive  right  to  navigate  the  stream,  but 
the  plaintiff  obstructed  it ;  and  the  defendants  attempted  to 
remove  the  obstruction,  and,  the  plaintiff  having  assaulted  them, 
they,  in  self-defence,  necessarily  beat  and  wounded  him  a  little, 
using  only  such  force  as  was  necessary  to  remove  the  obstruction. 

—  Ibid. 

Action  for  assault  on  board  a  vessel.  Plea  as  to  the  assaulting, 
beating,  and  ill-treating  the  plaintiff.  The  defendant  was  the 
captain  of  a  vessel,  on  board  of  which  the  plaintiff  and  others 
were  passengers,  and  the  plaintiff  made  a  great  noise,  disturb- 
ance, and  affray  on  board  said  vessel,  and  was  then  fighting  with 
another  person,  whose  name  was  to  the  defendant  unknown,  and 
was  striving  to  beat  and  wound  said  person  ;  wherefore  the 
defendant,  as  such  captain,  to  preserve  peace  and  order  and 
prevent  the  beating  and  wounding  of  such  person,  gently  laid  his 
hands  upon  the  plaintiff,  which  was  the  trespass  complained  of. 

—  2  Eng.  L.  &  Eq.  201.     (But  this  plea  was  held  no  answer  to  a 


FALSE   IMPRISONMENT.  717 

charge  in  the  declaration  of  knocking  down  and  prostrating  the 
phiintiff.) 

DECLARATIONS,    ETC.,    FOR   FALSE   IMPRISONMENT. 

The  defendants,  A  and  B,  A  acting  as  attorney  for  B,  recov- 
ered a  judgment  against  the  plaintitf  for  30/.  7.s.  4c?.,  and  the 
plaintiff  paid  and  satisfied  to  (B)  the  debt  recovered,  except  1  ;").s. 
8c?.,  and  the  defendants  sued  out  a  ca.  sa.  upon  the  judgment,  and 
wrongfully  and  maliciously,  and  without  any  reasoual)le  or  proba- 
ble cause,  indorsed  the  writ  with  directions  to  levy  5?.  14.s.  Sd.  and 
interest,  and  1?.  7s.  for  the  costs  of  execution.  And  the  plaintiff 
tendered  and  offered  to  pay  to  the  defendants  3?.  8&'.,  which  was 
sufficient  to  pay  and  discharge  all  that  was  recoverable  against 
the  plaintiff  upon  the  judgment  and  writ,  together  with  tlie  costs 
of  the  writ  of  execution  and  all  other  legal  and  incidental  ex 
penses  ;  and  the  defendants  wrongfully  and  maliciously,  and  with 
out  any  reasonable  or  probable  cause,  procured  the  sheriff  to 
arrest  the  plaintiff  and  detain  him  until  he  paid  7?.  (Js.  9c?.  ; 
whereas  the  sum  of  3/.  85.,  and  no  more,  was  due,  &c.  —  10  C.  B. 
(N.  S.)  592. 

The  defendant  caused  the  plaintiff  to  be  arrested  and  impris- 
oned without  reasonable  or  pi\;bable  cause,  on  a  false  and  mali- 
cious charge  of  felony.  —  27  L.  J.  Exch.  315 ;  3  H.  &  N.  950. 

The  plaintiff  was,  after  he  was  taken,  during  his  detention,  and 
before  his  discharge,  able  and  willing  and  offered  to  pay,  and 
always  afterwards  during  his  detention  was  willing  to  pay,  and  was 
finally  discharged  from  imprisonment  upon  paying  (a  sum  smaller 
than  that  insisted  on).  And  the  plaintiff,  by  reason  of  the 
premises,  was  necessarily  put  to  and  incurred  divers  costs  and 
expenses  in  and  about  obtaining  his  discharge.  —  2  C.  B.  (N.  S.) 
467. 

PLEAS,    ETC. 

If  the  plaintiff  was  arrested  on  two  writs,  as  alleged,  he  was 
rightfully  arrested,  because  the  first  action  was  discontinued  by 
reason  of  his  representations  and  notice  given  him  of  the  discon- 
tinuance, before  the  commencement  of  the  second  action.  —  6 
Gray,  233. 


718  APPENDIX. 

The  plaintiff  attempted  forcibly  to  break  and  enter  the  mes- 
suage or  {)ublic-house  of  the  defendant  without  leave  ;  whereupon 
he  resisted  such  entrance  ;  and  because  the  plaintiff  behaved  him- 
self violently  and  created  a  disturbance  in  the  street,  by  which 
means  a  mob  was  assembled,  and  the  defendant's  business  inter- 
rupted, and  his  customers  annoyed,  and  because  the  plaintiff 
threatened  to  continue  such  violent  conduct,  and  to  renew  his 
attempts  and  efforts  to  get  into  the  house  ;  and  because  no  request 
or  entreaty  of  tlie  defendant  to  the  plaintiff  to  abstain  from  and 
abandon  his  attempts  and  efforts  was  complied  with  ;  the  defend- 
ant, in  order  to  preserve  the  peace,  and  to  secure  himself  from  a 
renewal  of  such  attempts  and  efforts,  gave  him  in  charge  to  a  con- 
stable, to  be  carried  before  a  justice  of  the  peace.  (Held  good, 
after  verdict.)  —  1  M.  &  W.  516. 

The  defendant  w^as  possessed  of  a  shop,  and  carried  on  the 
business  of  a  baker  therein,  and  the  plaintiff  had  been  in  the  shop 
making  a  great  noise  and  disturbance,  and  abused  the  defendant, 
and  disturbed  him  in  the  peaceable  possession  of  his  shop,  in 
breach  of  the  king's  peace,  and  thereby  obstructed  the  defendant 
in  the  exercise  of  his  business.  And  the  plaintiff  went  out  of  the 
shop  into  the  public  street  in  front  of  it,  and  continued  there  to 
make  a  great  noise  and  disturbance,  and  to  abuse  the  defendant, 
and  therebj  caused  a  great  concourse  of  persons  to  assemble,  and 
so  disturbed  the  defendant  in  the  possession  of  his  shop,  and 
obstructed  his  business,  in  breach  of  the  peace  (and  thereby 
caused  a  great  riot  and  disturbance).  And  the  defendant  re- 
quested him  to  desist  and  depart,  but  he  refused  ;  whereupon  the 
defendant,  in  order  to  preserve  the  peace,  sent  for  certain  police- 
men, and  requested  them  to  remove  the  plaintiff.  And  they 
requested  the  plaintiff  to  cease  making  such  noise  and  disturb- 
ance, &c.,  but  he  refused,  and  continued  making  such  noise,  riot, 
and  disturbance,  &c. ;  whereupon  the  defendant,  in  order  to  pre- 
serve the  peace,  charged  them  with  the  plaintiff,  and  he  was  taken 
to  a  station-house,  and  thence  before  a  magistrate,  who  admon 
ished  and  discharged  him.  —  2  M.  &  W,  477. 

The  plaintiff  disturbed  a  congregation  while  the  minister  was 
performing  the  rites  of  burial,  and  the  defendant  manus  mollitur 
imposuit  to  prevent  such  disturbance.  —  1  Mod.  168. 


FALSE    IMPRISONiMENT.  719 

The  defendant  was  a  constable,  and  a  felony  had  been  com- 
mitted, and  a  reasonable  suspicion  and  belief  existed  that  the 
plaintifT  was  guilty  of  said  felony.  And  one  A  and  others  in- 
formed the  defendant  that  the  plaintifT  was  guilty  of  said  felony. 
(State  briefly  the  facts  upon  which  the  informant's  knowledge  or 
belief  was  founded.)  And,  for  the  purpose  of  carrying  the  {)lain- 
tiflf  before  some  justice  of  the  peace  to  be  dealt  with,  the  defend- 
ant arrested  him.  —  G  Blackf.  406. 

Tiie  act  complained  of  was  an  arrest  of  the  phiintilT,  under  a 
warrant  issued  at  the  instance  of  the  defendant,  who  was  city 
attorney  of  Utica,  for  the  violation,  by  the  plaintiff,  of  an  ordi- 
nance made  by  the  common  council.  —  2  Hill,  296. 

Action  against  the  Speaker  of  the  House  of  Commons  for  for- 
cibly, and  witii  the  assistance  of  armed  soldiers,  breaking  into  the 
messuage  of  the  plaintiff  (ihe  outer  door  being  shut  and  fastened), 
arresting  him,  taking  him  to  the  Tower  of  London,  and  imprison- 
ing him  there. 

Defence.  A  parliament  was  held,  which  was  sitting  during  tlie 
period  of  the  trespasses  complained  of;  and  the  plaintiff  was  a 
member  of  the  House  of  Commons  ;  and  the  House  having  re- 
solved, "  That  a  certain  letter,  &c.,  in  Cobbett's  Weekly  Register, 
was  a  libellous  and  scandalous  paper,  reflecting  on  the  just  rights 
and  privileges  of  the  House  ;  and  that  the  plaintiff,  who  had 
admitted  that  the  said  letter,  &c.,  was  printed  by  his  authority,  had 
been  thereby  guilty  of  a  breach  of  the  privileges  of  that  House;" 
and  having  ordered  that  for  his  said  olfence  he  should  be  com- 
mitted to  the  Tower,  and  that  the  Speaker  should  issue  his  war- 
rant accordingly:  —  the  defendant,  as  Speaker,  in  execution  of 
the  said  order,  issued  his  warrant  to  the  sergeant-at-arms,  to 
whom  the  execution  of  such  warrant  belonged,  to  arrest  the 
plaintiff,  and  commit  him  to  the  custody  of  the  Lieutenant  of 
the  Tower,  to  receive  and  detain  the  plaintiff  in  custody  during 
the  pleasure  of  the  House;  by  virtue  of  which  first  warrant  the 
sergeant-at-arms  went  to  the  messuage  of  the  plaintiff,  where  he 
then  was,  to  execute  it;  and,  because  the  outer  door  was  fastened, 
and  he  could  not  enter,  after  audible  notification  of  his  purpose, 
and  demand  made  of  admission,  he,  by  the  assistance  of  the  said 
soldiers,  broke  and  entered  the  plaintiff's  messuage, and  arrested 
and   conveyed  him   to  the  Tower,  where   he  was  received  and 


720  APPENDIX. 

detained  in  custody,  under  the  other  warrant,  by  the  Lieutenant 
of  the  Tower.  — 14  E.  1. 


Action  against  the  sergeant-at-arms,  charged  with  the  execution 
of  such  warrant. 

Defence.  Upon  tlie  plaintiff's  refusing  to  submit  to  the  ar- 
rest, and  shutting  the  outer  door  against  the  sergeant,  who 
had  demanded  admission  for  the  purpose,  and  declaring  that  the 
warrant  was  illegal,  and  that  he  would  only  submit  to  superior 
force  ;  and  a  large  mob  having  assembled  before  the  plaintiff's 
house,  and  in  the  streets  adjoining,  so  that  the  sergeant  could 
not  arrest  and  convey  the  plaintiff  to  the  Tower  without  danger 
to  himself  and  his  ordinary  assistants,  if  at  all,  by  the  mere  aid 
of  the  civil  power ;  the  sergeant  thereupon  called  in  aid  a  large 
military  force  ;  and,  after  breaking  into  the  plaintiff's  house, 
placed  a  competent  number  of  the  military  therein,  for  the  pur- 
pose of  securing  a  safe  and  convenient  passage  to  conduct  the 
plaintiff  out  of  the  house  into  a  carriage  in  waiting,  and  thence 
conducted  him  with  a  large  military  escort  to  the  Tower,  using 
at  the  same  time  every  personal  courtesy  to  his  prisoner  consistent 
with  the  due  execution  of  his  duty,  which,  however,  would  not 
safely  admit  of  delay  in  the  execution  of  such  warrant.  — 14  E. 
163. 

Trespass  for  assault  and  false  imprisonment. 

Plea.  The  plaintiff,  just  before  the  time  when,  etc.,  without 
leave  of  the  defendant,  at  an  unreasonable  hour  at  night,  entered 
into  the  defendant's  dwelling-house,  and,  with  force  and  arms, 
made  a  great  disturbance,  and  insulted  and  abused  the  defendant 
therein,  and  disturbed  him  in  the  peaceable  possession  thereof  in 
breach  of  the  peace;  whereupon  the  defendant  requested  the 
plaintiff  to  cease  his  noise  and  disturbance,  and  depart  from  out 
the  dwelling-house,  which  the  plaintiff  reluctantly  did,  and  threat- 
ened the  defendant  that  he  would  rap  at  the 'door  till  the  defend- 
ant delivered  up  a  certain  book.  And  the  plaintiff  did  stand  at 
the  door,  on  the  defendant's  premises,  rapping  violently,  illegally, 
and  wrongfully  against  it,  lor  two  hours,  and  during  that  time 
insulted  the  delendant,  and  disturbed  him  in  the  possession  of  his 
dwelling-house,  in  further  breach  of  the  peace ;  whereupon  the 
defendant  requested  the  plaintiff  to  cease  his  noise  and  disturb- 
ance, and  depart  off"  the  defendant's  premises ;  which  the  plaintiff 


FALSE   IMPRISONMENT,   LIBEL,   ETC.  721 

refused  to  do,  and  continued  knocking,  &c.,  and  threatened  the 
defendant  to  continue  the  noise  and  disturbance  until  he  sliould 
deliver  the  book.  The  defendant  then  sent  for  a  constable  for 
the  purpose  of  taking  the  plaintiff  into  custody,  and  thereby 
preventing  him  from  further  disturbing  the  defendant ;  and  the 
plaintiff  having  ascertained  that  he  was  about  to  be  given  into 
custody,  ceased  the  rapping,  which  he  had  violently,  &c.,  con- 
tinued up  to  that  period,  and  ran  and  escaped  off  and  from  tlie 
defendant's  premises  ;  when  the  defendant  immediately  pursued 
the  plaintiff",  and  overtook  him  near  the  dwelling-house,  and  there- 
upon the  defendant,  it  being  necessary,  in  order  to  preserve  the 
peace  and  prevent  the  plaintiff  from  continuing  to  disturb  the 
order  and  tranquillity  of  the  dwelling-house,  and  from  continuing 
to  make  the  noise  and  disturbance  at  the  dwelling-house  durins: 
the  whole  night,  gave  charge  of  the  plaintiff  to  the  constable, 
who  had  in  his  hands  a  legal  warrant  to  arrest  the  plaintiff  for 
the  acts  aforesaid,  and  who  saw  and  witnessed  the  same,  and 
requested  the  constable  to  take  the  plaintiff  into  custody,  carry 
him  before  a  justice  to  answer  the  premises,  and  to  be  dealt  with 
according  to  law ;  and  the  constable  gently  laid  hands  on  the 
plaintiff  for  the  cause  aforesaid,  and  took  him  into  custody  in  order 
to  carry  him  before  a  justice,  to  be  there  dealt  with,  &c.  —  2  Ad. 
&  Ell.  (N.  S.)  375. 

Trespass  for  assault  and  false  imprisonment  and  taking  the 
plaintiff  to  a  police-station. 

Plea.  The  defendant  was  possessed  of  a  dwelling-house,  and 
the  plaintiff  entered  the  dwelling-house,  and  then  and  there  in- 
sulted, assaulted,  abused,  and  ill-treated  the  defendant  and  his 
servants  in  the  dwelling-house,  and  greatly  disturbed  them  in  the 
peaceable  possession  thereof,  in  breach  of  the  peace  ;  whereupon 
the  defendant  requested  the  plaintiff  to  cease  his  disturbance,  and 
to  depart  from  and  out  of  the  house ;  which  the  plaintiff  refused 
to  do,  and  continued  in  the  house,  making  the  said  disturbance 
and  affray  therein.  And  thereupon  the  defendant,  in  order  to 
preserve  the  peace  and  restore  good  order  in  the  house,  gave 
charge  of  the  plaintiff  to  a  certain  policeman,  and  requested  the 
policeman  to  take  the  plaintiff  into  his  custody,  to  be  dealt  with 
according  to  law  ;  and  the  policeman,  at  such  request  of  the 
defendant,  gently  laid  his  hands  on  the  plaintiff,  for  the  cause 
aforesaid,  and  took  him  into  custody. —  Cr.,  JMees.  &  R.  756. 

46 


722  APPENDIX. 

Declaration  for  slander. 

The  plaintiff  was  a  salaried  superintendent  of  police  at  L.,  and 
it  was  his  duty,  as  such,  to  conduct  himself  temperately  and  with 
decency  and  propriety,  while  on  duty,  and  to  hinder  and  repress 
indecent  and  disorderly  conduct  in  the  police-office.  And  the 
defendant,  intending  to  injure  the  plaintiff  in  his  office,  and 
cause  it  to  be  believed  that  he  had  misconducted  himself  as  such 
superintendent,  and  cause  him  to  be  dismissed  from  his  office, 
in  a  discourse  which  he  had  concerning  the  plaintiff  as  such 
superintendent,  and  concerning  the  plaintiff's  conduct  in  his 
office  (specially  setting  forth  how  the  words  were  connected  with 
the  office),  falsely,  &c.,  spoke  and  published  concerning  the  plain- 
tiff, and  concerning  him  as  such  superintendent,  and  concerning 
his  conduct  in  his  office,  the  false,  &c.,  words :  "  1 "  (meaning  the 
defendant)  "  saw  a  letter  two  or  three  days  since,  regarding  an 
officer  of  the  L.  police  force"  (meaning  the  plaintiff),  "  who  " 
(meaning  the  plaintiff)  ''  had  been  guilty  of  conduct  unfit  for 
publication."  — 6  Ad.  &  Ell.  (N.  S.)  7. 

The  plaintiff  was  editor  of  a  newspaper  called  the  Massachu- 
setts Cataract,  and  the  defendant  (adding  a  colloquium')  published 
a  false  and  malicious  libel  of  and  concerning  the  plaintiff,  and  his 
violations  of  the  seventh  commandment  of  Scripture,  as  follows  : 
"  To  the  editor  of  the  Massachusetts  Cataract.  Can  you  "  (mean- 
ing the  plaintiff)  "  break  every  commandment  in  the  decalogue, 
and  still  go  unwhipped  of  justice  ?  Can  you  (meaning  the  plain- 
tiff) "  be  guilty  of  breaking  the  seventh  commandment,  and  cover 
that  noisy  and  licentious  affair?  Can  you"  (meaning  the  plain- 
tiff) "  recollect  the  tenth  commandment,  which  says.  Thou  shalt 
not  covet  thy  neighbor's  wife?  If  you"  (meaning  the  plaintiff) 
"  recollect  this  commandment,  can  you  "  (meaning  the  plaintiff) 
"  put  your  hand  upon  your  heart,  and  say  you  "  (meaning  the 
plaintiff)  "  have  a  clear  conscience  on  this  subject?  Is  not  con- 
science a  little  unquiet?  Does  it  not  say,  Hush,  be  still?  It  won't 
do  to  reveal  the  things  of  the  prison-house  ;  those  things  said  and 
done  in  secret  places."  Meaning  thereby,  that  the  plaintiff  had 
committed  the  crime  of  adultery,  and  that  his  conscience  accused 
him  of  this  crime.  And  by  said  words  the  defendant  accused  the 
plaintiff  of  the  crime  of  adultery. —  11  Met.  473. 

The  discourse  of  the  defendant  was  had,  concerning  a  trial 


LIBEL,   ETC.;   MALICIOUS   PROSECUTION.  723 

between  the  plaintiff  and  the  defendant  before  a  certain  justice 
of  the  peace,  &c.,  and  concerning  an  oath  the  plaintiff  took  on 
said  trial  before  said  justice  in  proving  his  account. —  2  Iluinph. 
434. 

A  was  murdered,  and  the  plaintiff  was  concerned  in  it,  and 
bad  a  hand  in  it;  meaning  that  the  plaintiff  aided  and  assisted  in 
the  commission  of  the  murder.  — 10  N.  H.  52. 

The  defendant  publicly,  falsely,  and  maliciously  accused  the 
plaintiff  of  the  crime  of  larceny,  in  words  spoken  of  and  con- 
cerning the  plaintiff  substantially  as  follows  :  "  He  is  a  thief.  "  — 
14  Gray,  221. 

He  (the  plaintiff)  acknowledged  that  he  swore  to  a  lie  about 
the  money,  and  had  taken  seventy-five  dollars  out  of,  &c.,  more 
than  he  ought  to ;  he  acknowledged  to  me  that  he  swore  falsely 
in  the  trial  with,  &c. ;  and  that  he  swore  falsely  in  reference  to 
the  money,  and  that  he  never  let,  &c.,  have  any  money  as  he 
swore  he  did,  and  that  he  must  go  to  State-prison.  —  33  Verm. 
182. 

In  a  conversation  of  and  concerning  the  plaintiff  as  a  physi- 
cian, &c.,  "  The  bitters  that  Dr.  A  gave  to  B  caused  his  death  ; 
there  was  poison  enough  in  them  to  kill  ten  men."  —  22  Ind. 
184. 

MALICIOUS    PROSECUTION. 

The  plaintiff  was  arrested,  entered  into  recognizance,  and  was 
afterwards  therefrom  and  thereof  discliarged  and  acquitted,  and 
the  prosecution  was  wholly  ended  and  determined.  —  Chaves,  9. 

The  defendant,  falsely  and  maliciously,  and  without  probable 
cause,  made  affidavit  in  the  Court  of  Exchequer,  that  the  plaintiff 
was  indebted  to  the  Queen  in  a  sum  named,  and  was  in  embar- 
rassed circumstances,  and  that  the  debt  was  in  danger  ;  by  means 
whereof  the  defendant,  maliciously  and  without  probable  cause, 
caused  a  commission  to  issue  and  an  inquisition  thereon  to  be 
taken,  whereby  it  was  found  that  the  plaintiff  was  indebted  to  the 
Queen  in  the  sum  named ;  and  the  defendant  afterwards,  falsely, 


724  APPENDIX. 

maliciously,  and  without  probable  cause,  procured  a  writ  of 
extent  to  be  issued  and  delivered  to  the  slierifF,  under  which  the 
plaintiff's  goods  were  seized,  which  writ  of  extent  was  afterwards 
superseded  in  the  Court  of  Exchequer,  and  the  said  writ  of  ex- 
tent was  then  and  is  ended ;  whereas  the  plaintiff  was  indebted 
only  in  a  small  portion  of  the  sum  named,  and  was  not  in  embar- 
rassed circumstances,  and  the  debt  was  not  in  danger,  as  the 
defendant  knew  ;  and  the  plaintiff  thereby  suffered  great  damage, 
from  loss  of  credit,  by  a  creditor's  selling  the  plaintiff's  property 
under  a  power  of  sale  given  as  a  security,  and  another  credi- 
tor's making  an  affidavit  and  giving  notice  to  make  the  plaintiff 
a  bankrupt.  —  4  Ad.  &  Ell.  (N.  S.)  481. 

The  defendant  falsely  and  maliciously  made  an  affidavit,  &c.,  and 
upon  said  affidavit  falsely  and  maliciously  caused  and  procured 
the  plaintiff  to  be  arrested,  and  imprisoned  for  ten  days,  at  the 
expiration  of  which,  the  plaintiff,  in  order  to  procure  his  release 
and  discharge,  was  forced  to  and  did  pay  to  said  defendant  a 
large  sum  of  money,  to  wit,  &c.,  and  was  thereupon  discharged 
and  released,  &c.  — 19  Ala.  760. 

The  defendant,  upon  a  writ  of  ca.  sa.,  properly  issued  at  his 
instance,  for  a  large  amount,  but  a  great  part  of  which  had  been 
afterwards  satisfied,  falsely  and  maliciously,  and  without  any  rea- 
sonable or  probable  cause,  procured  the  sheriff  to  issue  a  warrant, 
to  take  and  keep  the  plaintiff,  &c.,  and  falsely  and  maliciously, 
and  without  any  reasonable  or  probable  cause,  procured  the 
warrant  to  be  indorsed  to  levy  the  larger  amount,  whereupon  the 
plaintiff  was  taken  and  detained  for  four  weeks,  and  suffered  in 
his  business  and  credit.  —  26  Eng.  L.  &  Eq.  200. 

The  defendant  took  and  distrained  the  growing  crops,  <fec.,  of 
the  plaintiff,  under  color  and  as  in  the  name  of  distress  for  rent, 
which  crops,  &c.,  were  sufficient  to  have  satisfied  the  arrears  of 
rent  and  costs  ;  and  although  the  defendant  might,  under  the 
said  distress,  have  satisfied  the  said  arrears,  &c.,  yet  he  wrong- 
fully and  vexatiously  made  a  second  distress  on  the  said  growing 
crops,  for  the  same  arrears,  and  wrongfully  kept  and  withheld 
the  said  crops,  &c.,  from  the  plaintiff  for  a  long  time,  &c.  —  4  Ad. 
&  Ell.  (N.  S.)  123. 


NUISANCE.  725 

The  defendant  falsely  and  maliciously,  and  without  any  reason- 
able or  probable  cause,  charged  the  plaintiff  with  having  feloni- 
ously stolen  a  certain  horse  of  the  defendant's.  —  8  Blackf.  37. 

The  defendant  falsely,  <fec.,  before  a  certain  justice  of  the  peace 
(naming  him),  charged  tlie  plaintiff  with  having  wilfully  and 
maliciously  set  on  fire  and  burned  a  certain  district  school-house 
(naming  the  district,  township,  and  county).  —  6  Blackf.  295. 

Declaration  in  case,  for  wrongfully  suing  out  an  attachment. 

Plea.  The  attachment  was  not  sued  out  wrongfully,  maliciously, 
or  vexatiously,  or  without  reasonable  or  probable  cause.  —  20 
Ala.  527. 

NUISANCE. 

The  plaintiff  was  lawfully  possessed  of  a  certain  close  (de- 
scribing the  same),  and  the  defendant,  well  knowing  the  premises, 
wrongfully  and  injuriously  kept  and  continued  a  building  pro- 
jecting and  overhanging  the  plaintiff's  said  close,  and  before 
then  wrongfully  erected  and  built,  projecting  as  aforesaid,  for  a 
long  space  of  time. —  7  Allen,  431.  (Held,  a  declaration  for 
nuisance.) 

The  defendant,  being  possessed  of  a  messuage  adjoining  a 
garden  of  the  plaintiff,  erected  a  cornice  upon  his  messuage, 
projecting  over  the  garden,  by  means  whereof  rain-water  flowed 
from  the  cornice  into  the  garden,  and  damaged  the  same,  and  the 
plaintiff  has  been  incommoded  in  the  possession  and  enjoyment  of 
his  garden.  — 1  Com.  B.  828. 

The  plaintiffs  were  possessed  of  a  vault  adjoining  certain  walls, 
and  which  was  of  right  supported  in  part  by  parts  of  the  adjoin- 
ing walls  ;  and  were  of  right  entitled  that  their  vault  should  be  so 
supported  ;  and  there  were  foundations  belonging  to  the  vault 
which  the  plaintiffs  ought  to  enjoy.  Yet  tiie  defendant  wrong- 
fully removed  the  wall  adjoining  the  plaintiff's  vault,  without 
taking  proper  precautions  to  prevent  them  from  giving  way; 
•per  quod  the  plaintiffs'  vault  was  damaged  by  the  fall  of  some 
materials,  which  otherwise  would  not  have  hurt  it  (and  special 
loss  ensued).  — 3  Bing.  N.  C.  334. 


726  APPENDIX. 

The  plaintiff,  before  and  at  the  time  of  committing  the  griev- 
ance alleged,  was  navigating  his  barges,  laden  with  goods,  along 
a  public  navigable  creek,  and  the  defendant  wrongfully  moored  a 
barge  across,  &c,,  and  kept  the  same  so  moored,  from  thence 
hitherto,  and  thereby  obstructed  the  public  navigable  creek,  and 
prevented  the  plaintiff  from  navigating  his  barges  so  laden  ;  per 
quod  the  plaintiff  was  obliged  to  convey  his  goods  a  great  dis- 
tance over  land,  and  thereby  put  to  trouble  and  expense.  —  4  M. 
&  S.  101. 

Trespass  against  the  mayor,  councilmen,  and  constable  of  a 
town,  individually,  for  pulling  down  the  plaintiff's  house. 

Defence.  The  corporation  passed  an  ordinance,  declaring  the 
house  a  nuisance,  it  being  unoccupied  by  the  plaintiff  or  a  tenant, 
but  used  by  others  in  such  manner  as  to  endanger  the  town  by 
fire,  and  also  to  make  it  offensive  to  the  citizens  and  endanger 
their  lives,  and  providing  that,  if  the  plaintiff  did  not  within  a 
specified  time  after  notice  abate  the  nuisance,  the  constable  should 
proceed  to  do  so. —  18  Ark.  252. 

Defence  for  shooting  the  plaintiff's  dog.  Said  dog  attacked 
him,  and  was  accustomed  to  attack  and  bite  mankind.  — 10. 
&  P.  104. 

Trespass  for  killing  a  mastiff. 

Defence.  He  ran  violently  upon  the  defendant's  dog,  and  bit 
him  ;  and  the  defendant  could  not  otherwise  separate  the  mastiff 
from  his  dog.  —  1  Saun.  83. 


WATEECODRSE. 

The  plaintiff  was  owner  of  a  mill  a  short  distance  from  one 
occupied  by  the  defendant  on  the  same  stream,  and  the  defendant 
wilfully,  and  with  intent  to  injure  the  plaintiff,  frequently  shut 
down  his  gates,  so  as  to  accumulate  a  large  head  of  water,  and 
then  raised  them,  by  which  means  an  immense  volume  of  water 
ran  with  great  force  against  the  plaintiff 's  dam,  and  swept  it 
away.  — 13  Ired.  50. 

The  defendants  built  dams,  Arc,  whereby  they  kept  back  the 
water,  and  also  opened  gates,  whereby  mud  washed  out  with  the 


FRAUD,    CONVERSION.  727 

water,  and  filled  the  plaintiff's  ditches,  and  rendered  the  water 
worthless.  —  14  Cal.  25. 

Lights,  &c.  The  grievances  complained  of  were  occasioned 
by  the  defendant's  pulling  down  a  house  and  erecting  another  in 
its  place,  which  he  did  with  the  acquiescence  and  consent  of  the 
plaintiff,  and  on  the  faith  of  such  acquiescence  and  consent  he 
incurred  expenses. 

Replication. 

The  plaintiff  acquiesced  and  consented,  &c.,  on  the  faith  of 
false  representations  of  the  defendant ;  that  is,  that  tlie  griev- 
ances complained  of  would  not  result  from  his  works.  —  7  Jur. 
(N.  S.)  1247. 

FRAUD. 

The  plaintiff  was  a  printer  of  silk  goods,  and  had  delivered  to 
the  defendant  a  lot  of  such  goods,  in  which  were  woven  fabrics 
of  silk,  printed  by  the  plaintiff  with  a  design  for  the  ornamenting 
of  them,  which  had  been  published  by  the  plaintiff  to  the  defend- 
ant and  others ;  and  the  plaintiff  was  about  to  print  other  fabrics 
of  silk  with  the  same  design,  and  to  publish  the  same  in  the  way 
of  his  trade  for  gain  ;  of  all  which  the  defendant  had  notice  ;  but 
the  defendant,  contriving  to  deceive,  injure,  and  defraud  the 
plaintiff,  and  induce  him  to  desist  from  printing  more  with  the 
design,  and  to  deprive  him  of  the  gains  he  would  have  made,  and 
to  cheat  him  of  the  benefit  of  the  design,  and  to  acquire  the 
same  for  the  sole  benefit  of  the  defendant,  and  to  put  the  plaintiff 
to  expense;  falsely,  fraudulently,  and  deceitfully  represented  to 
the  plaintiff  that  in  the  lot  there  was  a  copy  of  a  registered  pat- 
tern,^  and  that,  the  parties,  &c.,  having  asked  the  defendant  for 
the  printer,  the  defendant  was  obliged  to  give  the  plaintiff's 
name ;  and  the  parties  intended  to  proceed  against  the  plaintiff 
by  injunction  and  order  through  the  Court  of  Chancery;  wiiereas, 
in  truth,  no  such  design,  or  design  resembling  it,  had  been  regis- 
tered according  to  the  statutes  aforesaid  ;  and  there  were  no 
parties  interested  in  the  design ;  nor  had  any  parties  asked  the 
defendant  for  the  printer  ;  nor  had  the  defendant  given  them 
the  plaintiff's  name ;  nor  did  any  parties  intend  to  proceed 
against  the  plaintiff  by  injunction,  &c.,  as  the  defendant,  at  the 

1  See  Stats.  5  &  6  Vict.  c.  100,  6  &  7  Vict.  c.  65. 


728  APPENDIX. 

time  of  making  the  representation,  knew ;  by  means  of  which 
representation  the  plaintiff,  beheving  it  to  be  true,  was  inducec^ 
to  travel  a  long  distance  for  the  purpose  of  inquiring  into  the 
matters  represented,  and  satisfying  the  supposed  parties,  as  it 
was  reasonable  for  him  to  do  under  the  circumstances  ]  and  was 
induced  to  abstain  from  further  printing  with  the  design,  which 
he  had  orders  to  do,  and  from  selling  silk  handkerchiefs  printed 
with  the  design ;  and  the  defendant,  by  means  of  the  premises, 
enjoyed  the  benefit  of  the  design  to  the  exclusion  of  the  plaintiff, 
and  printed  with  the  design,  and  sold,  for  his  profit,  silk  hand- 
kerchiefs, and  took  the  profits  without  the  competition  of  the 
plaintifif,  and  to  his  exclusion.  —  9  Ad.  &  Ell.  (N.  S.)  197. 

CONVERSION. 

Trover  for  a  bedstead. 

Plea.  The  plaintifi"  heretofore  recovered  a  judgment  in  trover 
for  the  same  identical  bedstead,  against  A  (describing  the  judg- 
ment). And  the  conversion  by  A,  for  which  that  action  was 
brought,  was  a  conversion  not  later  in  point  of  time  than  the 
conversion  declared  on,  and,  before  this  conversion,  A,  being 
possessed  of  the  bedstead,  sold  it  to  the  defendant,  who  paid 
him  for  the  same,  and  received  it  under  such  sale  ;  and  the  tak- 
ing under  such  sale  was  the  conversion  declared  on.  —  3  Com.  B. 
266. 

Trover  for  timber. 

Plea.  The  defendant  was  possessed  of  a  close,  and  was  dig- 
ging a  saw-pit  therein,  and  because  the  goods  were  put  and 
placed  on  the  close  by  the  plaintiff,  without  leave  or  license,  and 
were  so  buried  therein  by  the  plaintiff,  that  the  defendant  could 
not  make  the  saw-pit  without  a  little  cutting  and  destroying  the 
said  goods,  the  defendant  did  necessarily  a  little  cut  and  destroy 
them.  —  20  Eng.  L.  &  Eq.  445. 

Trover  by  an  assignee. 

Plea.  Before  the  insolvent  petitioned  for  his  discharge,  the 
defendant  sold  and  delivered  to  him  divers,  &c.,  being  the  same 
as  those  mentioned  in  the  declaration,  for  X150,  on  the  terms 
that  the  defendant  might  at  any  time,  until  payment  of  the  price, 
take  and  retain  the  horses  and  harnesses  as  a  pledge  and  security 


TRESPASS,  OFFICERS.  729 

for  such  part  of  the  price  as  should  remain  unpaid,  until  payment 
thereof.  And  at  the  time  of  the  alleged  conversion,  X22,  part 
of  such  price,  remained  due.  And  after  the  plaintiff  became 
possessed  as  assignee,  the  defendant  took  the  said  horses  and 
harnesses  into  his  possession  as  such  pledge  and  security,  &c. ; 
which  is  the  conversion  in  the  declaration  mentioned.  —  2  M.  & 
W.  395. 

TRESPASS. 

The  defendant  broke  and  entered  the  plaintiff's  dwelling-house 
in,  &c.,  being  the  same  dwelling-house  occupied  by  the  plaintiff, 
with  force  and  arms,  and  did  then  and  there  imprison  the  plain- 
tiff for  the  space  of  one  hour,  without  any  legal  or  probable 
cause.  —  13  Met.  144. 

The  defendant  on,  &c.,  broke  and  entered  the  plaintiff's  close, 
and  ejected  him  therefrom,  and  kept  and  continued  him  so  ejected 
from  thence  hitherto,  whereby  the  plaintiff,  during  all  that  time, 
lost  the  use  and  benefit  of  said  close.  —  6  Gratt.  144. 

Trespass  qu.  cL 

Plea.  From  time  immemorial  there  hath  been  and  still  is  a 
public  port  partly  within  said  manor,  and  also  in  a  river  which 
has  been  a  public  and  common  navigable  river  from  time  imme- 
morial ;  and  there  is,  in  that  part  of  the  port  which  is  within  the 
manor,  a  certain  ancient  work  or  erection,  belonging  to  the  said 
port,  necessary  for  the  preservation  of  the  same  for  the  safety 
and  convenience  of  the  ships  resorting  thereto.  And  this  work 
being  damaged  and  in  decay  at  the  said  times  when,  &g.,  it 
became  necessary  that  the  said  work  should  be  immediately 
repaired.  And  neither  the  plaintiff,  nor  any  other  person  bound 
to  make  said  repairs,  though  duly  notified  to  make  the  same,  did 
nor  would  repair  the  same,  but  wholly  neglected  so  to  do  ;  where- 
fore the  defendants,  after  a  reasonable  time  for  repairing  had 
elapsed,  and  having  occasion  to  use  said  port,  entered  and  re- 
paired.—3  D.  &R.  556. 

PUBLIC   OFFICERS. 

The  plaintiffs  were  rated  to  a  church-rate,  <tc.,  and  were  sum- 
moned before  the  defendants  Q'ustices  of  the  peace)  to  answer  a 


730  APPENDIX. 

complaint  that  thej  had  refused  to  pay  it.  And  the  plaintiffs  duly 
attended,  and  in  good  faith,  &c.,  disputing  and  intending  to  dis- 
pute the  validity  of  the  said  rate,  upon  the  hearing  gave  to  the 
defendants,  then  being  and  acting  as  such  justices  as  aforesaid, 
notice  that  they  disputed  tlie  validity  of  the  rate,  and  required 
the  defendants,  as  such  justices,  to  forbear  from  and  not  to  give 
judgment  in  respect  of  the  matter  of  the  complaint.  And  there 
was  no  evidence  given,  to  or  before  the  defendants,  that  the  plain- 
tiffs did  not  in  good  faith  dispute  the  validity  of  said  rate,  or  that 
they  did  not  in  good  faith  give  such  notice  to  the  defendants 
as  aforesaid ;  yet  the  defendants,  disregarding  said  notice,  and 
assuming  to  act  as  justices  when  they  well  knew  that  they  had 
not  jurisdiction  to  make  any  order  upon  the  matter  of  the  com- 
plaint, made  an  order  for  payment  of  said  amount  of  said  rate, 
together  with  a  sum,  &c.,  for  costs.  —  8  Jur.  (N.  S.)  482. 

Declaration  against  a  sheriff.  Although  the  defendant  could 
have  levied  of  goods  of  the  debtor  within  his  bailiwick  the  moneys 
indorsed  on  the  writ,  yet  the  defendant,  disregarding  his  duty, 
did  not  levy  of  the  said  goods  the  moneys  or  any  part  thereof; 
and  the  defendant,  further  disregarding  his  duty,  falsely  returned, 
&c.  — 2Eng.  L.  &Eq.  260. 

The  defendant  (a  sheriff)  duly  committed  (A,  an  execution- 
debtor  of  the  plaintiff),  as  sheriff,  to  the  jail  of  the  county  of,  &c., 
and  the  term  of  the  defendant's  office  expired,  and  (B)  was 
elected  and  duly  qualified  as  sheriff  in  place  of  the  defendant ; 
and  the  defendant  was  duly  served  with  a  certificate  of  the  clerk 
of  the  county,  that  (B)  had  qualified  and  given  the  security  re- 
quired by  law.  And  the  defendant  did  not,  within  ten  days  after 
such  service,  deliver  to  the  new  sheriff  (A),  then  in  the  defend- 
ant's custody  on  said  execution,  and  confined  within  the  jail 
liberties.  —  4  Bosw.  649. 

Trespass  for  assault  and  false  imprisonment. 

Plea.  The  defendant  was  a  justice  of  the  peace  ;  and  a  felony 
had  been  committed,  and  there  was  reasonable  ground  for  sus- 
picion that  the  plaintiff  was  guilty  of  said  felony  (stating  particu- 
larly what  the  ground  was),  and,  in  consequence  thereof,  the 
defendant  ordered  the  plaintiff  to  be  arrested.  —  5  Blackf  406. 


OFFICERS.  731 

Trover  for  horses. 

Plea.  A  judgment  was  recovered  at,  &c.,  against  J.  F.  for, 
<fec.,and  the  defendant,  an  officer,  seized  tliem  nnder  an  execution 
against  J.  F.,  the  same  being  the  goods  and  chattels  of  the  said 
J.  F.,and  liable  to  be  seized  and  taken  as  aforesaid,  and  not  being 
the  property  of  the  said  plaintiff.  —  1  M.  &  W.  682. 

Trespass  for  breaking  and  entering  the  plaintiff's  close  and 
stable,  and  taking  away  two  horses. 

Plea.  An  execution  against  A  was  delivered  to  the  sheriff,  &c. ; 
and  the  horses  belonged  to  the  execution-debtor,  and  were  sub- 
ject to  the  execution ;  and  the  sheriff  by  virtue  of  the  execution, 
and  the  defendants  by  his  command,  broke  and  entered  into  the 
close  and  stable,  and  took  the  horses,  &c. 

Replication.  The  horses  did  not  belong  to  the  execution-debtor, 
but  to  the  plaintiff.  — 4  Blackf  16. 

Trespass  for  breaking  and  spoiling  a  lock,  bolt,  and  staple  apper- 
taining and  fixed  to  the  outer  door  of  the  plaintiff's  dwelling-house, 
and  wherewith  the  same  was  fastened. 

Plea.  A  ji.fa.,  &c.,  issued  against  the  plaintiff,  and  was  deliv- 
ered to  the  defendant,  being  a  sheriff,  <fcc. ;  by  virtue  whereof  the 
defendant,  then  lawfully  being  in  a  room  of  the  dwelling-house 
occupied  by  D  as  tenant  to  the  plaintiff,  peaceably  entered  into 
the  residue  of  the  dwelling-house,  through  the  door  communicat- 
ing between  the  room  and  the  residue,  the  same  being  then  open, 
to  take  in  execution  the  plaintiff's  goods  then  in  the  dwelling- 
house,  and  did  take  them ;  and  hecause  the  outer  door  was  shut 
and  fastened  with  the  lock,  bolt,  and  staple,  so  that  the  defendant 
could  not  carry  away  the  goods  or  execute  the  writ  without  open- 
ing the  outer  door,  nor  open  the  door  witliout  breaking  the  lock, 
&c.  ;  and  because  neither  the  plaintiff  nor  any  other  on  his  behalf 
was  in  the  dwelling-house,  so  that  the  defendant  could  request  the 
plaintiff  or  such  other  to  open  the  outer  door,  the  defendant,  for 
the  purposes  aforesaid,  did  open  the  outer  door,  and  in  so  doing 
did  necessarily  break,  &c.,  the  locks,  <fcc.,  doing  no  unnecessary 
damage.  —  7  Ad.  k  Ell.  827. 

Action  for  the  recovery  of  specific  personal  property  and  dam- 
ages for  its  detention. 

Answer.     The  property  was  seized  by  the  defendant  as  sheriff, 


732  APPENDIX. 

on  an  execution,  &c.,  against  one  J.  R.  And  a  trial  of  the  right 
to  property  of  J.  H.  R.  thereto  was  had  under  the  statute,  before 
the  justice  and  jury,  which  resulted  in  a  verdict  and  judgment 
in  favor  of  the  claimant,  J.  H.  R,  And  within  three  days  after 
said  trial,  the  plaintiff  in  execution  executed  an  undertaking  to 
the  said  J.  H.  R.,  in  strict  compliance  with  §  428  of  the  Code,  and 
delivered  the  same  to  the  defendant,  as  sheriff,  and  it  was  by  him 
tendered  to  the  claimant,  who  declined  to  receive  it,  and  there- 
upon brought  the  present  suit,  said  property  being  still  in  the 
possession  of  the  defendant  as  such  sheriff.  — 12  Ohio  (N.  S.) 
105. 

Action  for  assault  and  battery,  committed  on  an  officer  by  one 
whom  he  was  attempting  to  arrest  on  a  warrant. 

Rejoinder.  The  plaintiff,  at  the  time,  &c.,  did  not  acquaint  or 
give  notice  to  the  defendant  that  a  warrant  had  been  issued,  or 
that  he  had  any  warrant,  or  process,  &c.,  nor  did  the  defendant 
know  that  any  warrant  had  been  issued,  or  that  the  plaintiff  had 
any  warrant  or  process.  —  2  Hill,  86. 

JOINT    PARTIES. 

Action  against  A  and  B. 

A  was  indebted  to  the  plaintiff,  &c.  And  A  and  B  confederated 
and  conspired  together,  to  prevent  the  plaintiff  from  obtaining 
security  for,  or  payment  of,  his  debt ;  and,  in  pursuance  of 
such  purpose  and  intention,  and  in  order  to  enable  A  to  take 
the  poor  debtor's  oath,  the  defendants  caused  his  property  to 
be  removed  from  his  own  custody  and  possession  into  the  posses- 
sion of  B,  by  whom  the  same  or  the  proceeds  thereof  were  kept 
secreted  from  attachment,  both  parties  knowing  that  the  debt 
had  not  been  paid.  And  the  plaintiff  sued  out  a  writ  against  A 
to  recover  the  debt,  and  caused  his  body  to  be  arrested.  And 
A  took  the  poor  debtor's  oath  and  was  discharged  from  arrest ; 
and  the  plaintiff  entered  the  suit,  &c.,  and  recovered  a  judgment, 
&c.,  which  remains  wholly  unpaid.  —  3  Cush.  145. 

Action  on  the  case  against  ten  defendants. 

Before  and  at  the  time  of  the  grievances  complained  of,  the 
defendants  were  proprietors  of  a  stage-coach  for  the  conveyance 
of  passengers  for  hire  from  A  to  B,  and  they  received  the  plaintiff 


JOINT   PARTIES,   CORPORATIONS,   RAILROADS.  733 

as  an  outside  passenger,  to  be  safely  conveyed  thereon  from  A  to 
B,  for  hire  ;  and  by  reason  thereof  they  ought  to  have  safely 
conveyed  him  accordingly  ;  but  they  conducted  themselves  so  care- 
lessly in  this  behalf,  that  by  and  through  the  carelessness,  unskil- 
fulness,  and  default  of  themselves  and  their  servants,  the  coach 
was  overset ;  by  means  whereof  the  plaintiff  was  hurt,  and  sus- 
tained other  injuries.  —  6  Moo.  141. 

CORPORATIONS. 

Action  by  the  N.  Joint-stock  Company,  bankers  and  brokers, 
for  money  lent  to  purchase  shares  in  the  company. 

Plea.  The  directors  had  in  their  annual  reports  falsely  repre- 
sented their  affairs  to  be  flourishing,  whereas  the  company  was 
insolvent ;  and  paid  large  dividends,  whereas  such  dividends  were 
paid  out  of  the  capital ;  and  A,  their  manager,  falsely  represent- 
ing the  said  shares  to  be  of  great  value,  induced  the  defendant 
to  purchase  them,  and  at  the  same  time,  on  the  part  of  the  com- 
pany, offered  to  advance  the  money,  and  promised  that  the  com- 
pany would  hold  the  shares  for  him  until  they  could  be  sold  at  a 
profit,  without  his  being  called  upon  for  the  price ;  and  he,  rely- 
ing on  such  representations,  accepted  the  shares,  which  A  accord- 
ingly bought  and  paid  for,  and  still  possessed. — 32  Eng.  L.  & 
Eq.  1. 

Action  for  calls  against  a  shareholder  of  a  joint-stock  com- 
pany. 

Plea.  The  defendant  was  induced  to  become  a  shareholder  by 
the  fraud  of  the  plaintiffs  (setting  out  the  particulars).  And  the 
defendant  repudiated  the  contract  by,  &c.,  and  has  done  nothing 
under  it  to  make  him  liable  as  a  shareholder.  —  37  Eug.  L.  & 
Eq.^56. 

RAILROADS. 

The  defendants  did  carelessly  and  negligently  run  over,  &c.  — 
23  Ind.  133. 

The  plaintiff  was  injured  by  reason  of  the  defendants'  negli- 
gent management  of  the  cars  and  engines  of  a  railroad  in  Jersey 
City,  of  which  the  defendants  then  had  possession.  —  1  Dutch. 
381. 

The  defendants  were  the  owners  of  a  certain  railroad,  running 


734  APPENDIX. 

through  the  towns  of  W.  and  P.,  and  of  certain  cars  for  the  con- 
veyance of  passengers  upon  that  road.  And  on,  &c.,  the  defend- 
ants were  the  owners  of,  and  were  running  and  propelling,  upon 
said  road,  a  certain  train  of  passenger  cars,  for  a  certain  reason- 
able reward  paid  to  the  defendants.  —  21  Conn.  557. 

Action  for  land  damages. 

Plea.  The  defendants  entered  upon  the  land  under  (statute 
and  section),  before  the  expiration  of  the  prescribed  period  for 
exercising  their  compulsory  powers  ;  and  having  so  entered,  and 
being  lawfully  in  possession,  they,  after  the  expiration  of  the  pre- 
scribed period,  continued  in  possession,  and,  in  the  due  and  lawful 
exercise  of  the  powers  of  the  said  act,  committed  the  alleged 
grievances.  —  4  Eng.  L.  &  Eq.  223. 

TOWNS,    ETC.  —  DEFECTIVE   HIGHWAYS,    ETC. 

The  plaintiff  and  his  child  were  thrown  from  his  wagon  with 
great  force  and  violence,  and  he  and  the  child  greatly  injured 
and  damaged  thereby  (briefly  describing  the  injuries).  —  35  N. 
H.  530. 

The  plaintiff,  on  August  27,  1831,  at  Chelmsford,  was  travelling 
on  a  highway  in  Chelmsford,  which  highway  the  town  are  and 
were  on  said  day  by  law  bound  to  keep  in  repair,  on  a  part  of 
the  highway  leading  from  the  dwelling-house  of  I.  S.  to  the  stone 
guide-post  near  the  Middlesex  Turnpike  in  Chelmsford,  being 
within  said  town  of  Chelmsford  ;  and  the  highway  within  such 
limits  was  defective  and  in  want  of  repair ;  and  the  plaintiff, 
being  so  travelling  as  aforesaid,  at  the  time  and  place  aforesaid, 
sustained  the  injuries  complained  of  in  consequence  of  such  defect 
and  want  of  repair.  —  16  Pick.  128. 

The  defendants  were  incorporated,  &c.,  for  the  purpose  of 
building  a  bridge,  &c.,  and  by  virtue  of  their  charter  erected  a 
public  bridge,  and  were  bound  to  keep  it  in  repair.  And  the 
plaintiff  had  a  legal  right  to  pass  said  bridge.  (Notice  of  the 
defect  —  nature  of  the  defect  —  statutory  liability.) — 16  Pick. 
541. 

ASTER   AND    SERVANT. 

The  defendants  were  possessed  of  a  certain  cart  and  horse, 


TOWNS,    ETC.  ;    MASTER,    ETC.  ;    HUSBAND,    ETC.  735 

which  was  being  driven  by  and  under  the  care  and  direction  of 
their  servant  at  the  time  of  the  grievance  comphiined  of;  and 
whilst  the  plaintiff  was  crossing  a  certain  street,  &c.,  the  defend- 
ants, by  their  servant,  so  negligently  and  improperly  drove  and 
directed  the  said  cart  and  horse  along  the  said  street,  that  the 
plaintiff  was  knocked  down  and  injured.  — 13  Com.  B.  237. 

One  J.  AV.  had  contracted  with  the  plaintiff  to  sing,  during  a 
certain  term  (describing  it),  at  his  theatre  and  not  elsewhere, 
without  the  plaintiff's  consent,  and  the  defendant  during  the 
term  maliciously  enticed  and  procured  J.  W.  to  depart  irora  her 
said  contract  against  the  will  of  the  plaintiff,  whereby  J.  W. 
refused  to  sing  for  the  plaintiff  at  his  theatre  during  the  whole  of 
the  term.  And  J,  W.  had  been  hired  by  the  plaintiff  as,  and  was, 
his  dramatic  artiste,  for  a  certain  term  (describing  it),  and  the 
defendant  maliciously  enticed  and  procured  her  to  depart  from 
her  said  employment  during  the  said  term.  (Special  damage.)  — 
20.  L.  &  Eq.  168. 

ATTORNEYS. 

Action  against  attorneys  for  negligence  and  unskilfulness. 

They  conducted  the  suit  so  negligently  and  unskilfully,  in 
not  having  a  certain  writ  of  attachment,  affidavit,  and  declara- 
tion, before  then  prepared  by  them  in  said  action,  prepared,  drawn 
up,  and  filed,  and  made  out  according  to  the  laws  of  said  State 
and  rules  of  said  court,  that  the  said  plaintiff,  by  the  said  neglect 
of,  (fee,  was  hindered  and  prevented  from  recovering  judgment, 
&c.,  and  was  forced  and  compelled  to  release  and  dismiss  the 
levy  of  said  writ  of  attachment.  (Or)  by  reason  whereof  the 
said  plaintiff  has  been  prevented  from  recovering  her  demand, 
&c.  (Or)  the  defendants,  through  want  of  care  and  skill,  did 
dismiss  the  levy  of  a  certain  writ  of  attachment,  before  that  time 
levied  on  the  property  of  the  defendants  therein,  and  did  dismiss, 
relinquish,  and  release  all  liens  which  had  attached  or  accrued 
by  virtue  of  said  levy,  &c.,  and  by  means  of  the  unskilful  man- 
agement of  the  defendants,  the  plaintiff  lost  her  said  demand, 
and  the  means  of  recovering  and  collecting  the  same.  —  21  Ala. 
647. 

HUSBAND,    ETC. 

Declaration  by  husband  and  wife,  for  a  personal  injury  to  the 


736  APPENDIX. 

wife  (after  stating  the  nature  and  extent  of  the  injury).  By  means 
of  such  injury,  she  became  sick,  and  was  prevented  from  attend- 
ing to  her  necessary  affairs,  and  the  plaintiffs  were  thereby  forced 
to,  and  did,  necessarily  expend  two  hundred  dollars  in  endeavor- 
ing to  effect  a  cure.  —  21  Conn.  557. 

Action  by  husband  and  wife  for  injury  to  a  right,  belonging  to 
her  and  appurtenant  to  her  land,  to  take  water  from  a  reservoir  of 
the  defendant. 

Declaration  (in  substance).  The  wife  owned  the  land  ;  the 
plaintiffs  owned  and  possessed  the  right  to  take  the  water,  as 
owners  and  possessors  of  the  land  ;  and  by  the  wrongful  act  of 
the  defendant  the  plaintiffs  were  deprived  of  the  use  of  the  water. 
—  25  Conn.  510. 

The  defendant  unlawfully  and  unjustly  persuaded,  procured, 
and  enticed  the  wife  to  continue  absent,  &c.,  by  means  of  which 
persuasion  she  did  continue  absent,  &c.,  whereby  the  plaintiff  lost 
the  company  and  society  of  his  wife.  —  Willes,  577. 

BAILMENT. 

The  defendants  had  the  loading  of  a  hogshead  of  the  plaintiff, 
for  a  certain  reward  to  be  paid  to  one  of  them,  and  a  certain  other 
reward  to  the  other  two,  and  the  defendants  so  negligently  con- 
ducted themselves  in  the  loading,  &c.,  that  the  hogshead  was 
damaged.  —  3  B.  62. 

The  defendant  was  an  oil-broker,  and  the  plaintiffs,  licensed 
crushers,  retained  him  as  such,  to  sell  and  deliver  for  them  thirty 
tuns  of  linseed  oil,  according  to  the  contracts  of  sale,  to  purchasers, 
for  commission  and  reward  to  the  defendant  in  that  behalf;  which 
retainer  he  accepted;  and  he,  as  such  broker,  in  pursuance  of  the 
retainer,  made  a  contract  between  the  plaintiffs  and  A,  by  which 
the  plaintiffs  sold  to  A,  and  he  bought  of  them,  the  thirty  tuns, 
at  the  price,  &c.,  to  be  delivered  by  parcels  at  a  certain  place 
and  times,  each  parcel  to  be  paid  for  in  ready  money.  And  the 
plaintiffs  consigned  two  of  the  parcels  to  the  defendant,  and  he 
delivered  them  to  A  on  payment ;  and,  after  the  making  of  the 
contract,  and  in  pursuance  thereof  and  of  the  retainer,  the  plain- 
tiffs consigned  to  the  defendant,  as  such  broker,  the  residue  of  the 
thirty  tuns,  to  be  delivered  by  him  to  A  on  payment.     And  the 


BAILMENT,    CARRIERS,   LANDLORD,    ETC.  737 

oil  arrived,  etc.,  of  wliicli  tlie  defendant  liad  notice,  and  tocik  upon 
himself  tlie  delivery  according  to  the  contract;  and  thereupcjn  it 
became  and  was  the  defendant's  duty,  as  such  broker  as  aforesaid, 
to  use  all  reasonable  care  that  the  oil  should  not  be  delivered  to 
A  or  any  other  person,  without  the  price  being  paid  to  the  defend- 
ant according  to  contract ;  yet  the  defendant,  not  regarding  such 
duty,  did  not  use  reasonable  care,  <fec.,  that  the  oil  should  not  be 
delivered,  (fee,  without  the  price  being  paid,  but  neglected  and 
refused  so  to  do,  and  so  negligently  and  carelessly  behaved  in  the 
premises,  that,  by  the  defendant's  mere  carelessness  and  negli- 
gence, the  last-mentioned  oil  was  delivered  to  B  and  C,  without 
the  price  being  paid  by  A  or  any  person  to  the  defendant,  by 
reason  whereof,  and  of  A  having  become  bankrupt  and  unable  to 
pay,  the  plaintiffs  lost  the  said  oil,  and  the  price  thereof,  <fec. — 
3  Ad.  &  Ell.  (N.  S.)  511 ;  2  Gale  &  Dav.  793. 

CARRIERS. 

Declaration  against  a  common  carrier  of  passengers  for  refusing 
to  carry.  The  plaintiff  offered,  or  was  ready  and  willing,  to  pay 
tho  fare,  &c.  — 5  Mich.  520. 

It  was  the  duty  of  the  defendants  safely  to  carry  and  deliver, 
&c.,  but  they  did  not  deliver,  &c.,  within  a  reasonable  time, 
although  a  reasonable  time  for  the  delivery  has  elapsed. —  5 
Man.  &  Gran.  551. 

LANDLORD,    ETC. 

The  plaintiff  was  reversioner  of  a  house,  (fee,  then  occupied  by 
his  tenant,  A  ;  and  the  defendant  was  in  the  occupation  of  a  close 
near  to  the  house,  (fee,  in  which  was  a  watercourse.  And  the 
defendant,  by  reason  of  his  possession  of  the  close,  ought  to  have 
scoured,  (fee,  to  prevent  the  water  from  being  obstructed,  and 
from  running  out  of  the  watercourse  unto,  into,  and  under  the 
house,  (fee  But  the  defendant  permitted  the  watercourse  to  be 
obstructed,  so  that  the  water  was  penned  back,  and  ran  into  and 
damaged  the  house,  to  the  injury  of  the  plaintiff's  reversion. 

Plea.  A  wall,  parcel  of  the  plaintiff's  premises,  was  situate 
near  the  watercourse  and  the  defendant's  close.  And  said  A  (or 
the  owners  and  occupiers  of  the  plaintiff's  premises  for  the  time 
being)  was  bound  to  repair  said  wall,  but  neglected  so  to  do, 
And,  by  reason  of  the  wall's  being,  through  the  neglect  of,  (fee, 

47 


738  APPENDIX. 

ruinous,  &c.,  part  of  the  wall,  near  to  the  watercourse,  fell  down, 
and  rubbish,  (fee,  being  part  of  the  materials,  fell  into  the  water- 
course, and  the  same  was  thereby  choked  up ;  and  the  water,  for 
a  short  time,  unavoidably  was  penned  back,  <fec.,  and  ran  out,  as 
in  the  declaration  mentioned.  And  the  defendant,  in  a  reasonable 
time  after  he  had  notice  that  the  watercourse  was  so  choked  up, 
&c.,  and  before  action  brought,  cleansed  out  the  same,  so  that  the 
water  flowed  as  it  ought  to  do.  —  6  Mis.  592. 

(The  defendant)  knowing  that  a  certain  house,  (fee,  was  in  such 
a  ruinous  and  dangerous  state  as  to  be  dangerous  to  enter,  occupy, 
or  dwell  in,  and  knowing  that  the  state  of  the  house  was  unknown 
to  the  plaintiff,  by  agreement  in  writing  demised  the  said  house  to 
the  plaintiff,  and  the  plaintiff  agreed  to  take  the  same  at  a  cer- 
tain rent,  the  plaintiff  having  previously  proposed  to  take  said 
house  for  the  purpose  of  immediately  occupying  and  dwelling  in 
the  same.  And  the  plaintiff  did  not  agree  to  put  said  house  in 
repair  before  he  commenced  to  occupy  the  same,  and  was  induced, 
by  his  belief  of  the  soundness  of  the  house,  to  enter  into  such 
agreement  to  take  said  house.  And  the  defendant  falsely  repre- 
sented to  the  plaintiff,  before  the  making  of  said  agreement,  that 
said  house  was  in  a  safe  and  suitable  condition  for  occupancy. 
And  the  plaintiff  commenced  to  dwell  in  said  house  without  notice 
of  its  said  state,  and  so  continued  to  the  knowledge  of  the  defend- 
ant. And  the  defendant  neglected  his  duty  in  not  giving  the 
plaintiff  notice  the  said  house  was  in  said  state  before  entering 
into  said  agreement  and  before  the  plaintiff  commenced  occupying 
the  same.  And  shortly  after  the  plaintiff  commenced  occupy- 
ing the  same,  said  house  fell  down,  whereby —  (special  damage). 
—  2Eng.  L.  (feE.  318. 

INJURIES    CAUSINCx    DEATH. 

A  railroad  engine,  by  the  negligence  of  the  servants  of  (the 
defendants)  in  managing  the  same,  was  run  upon  (the  intestate), 
whereby  he  was  killed.  —  30  Conn.  18-4. 

(The  defendant's)  horse,  while  being  driven  and  trained  by 
him,  in  a  public  place  or  thoroughfare  in  the  city  of  Dublin,  to 
the  annoyance  of  great  numbers  of  passengers,  and  among  others 


INJURIES   CAUSING   DEATH,   ETC.  739 

of  (the  deceased),  contrary  to  tlie  provisions  of  the  Dublin  Police 
Act  (5  Yict.  session  2,  ch,  24,  §  14)  by  the  negligence  of  (the 
defendant),  ran  against  and  injured  (the  deceased),  whereby,  as 
the  necessary  result  and  consequence  of  the  aforesaid  illegal  act 
of  (the  defendant),  (the  deceased)  shortly  afterwards  died.  —  9 
Ir.  Com.  L.  Rep.  9. 

MISCELLANEOUS. 

The  plaintiff  had  bought  of  C  and  son  certain  goods  (for  a  sum 
mentioned),  which  the  defendant  had  lent  the  plaintiff  on  his  per- 
sonal credit,  without  agreement  for  and  lien  on  them  in  respect 
thereof,  which  sum  the  plaintiff  paid  to  C  and  son,  who  accepted 
it  in  payment  for  the  goods ;  yet  the  defendant,  falsely  and 
wrongfully  pretending  that  he  was  entitled  to  such  lien,  and  had 
a  right  of  preventing  delivery  to  the  plaintiff  till  the  said  loan 
should  be  repaid,  wrongfully  and  maliciously,  and  without  any 
reasonable  or  proljable  cause  in  that  behalf,  but  under  color  of 
the  said  pretended  lien,  ordered  C  and  son  not  to  deliver  the  said 
goods  to  the  plaintiff,  but  to  keep  them  till  they  received  further 
orders  ;  in  consequence  whereof  C  and  son  refused  to  deliver 
them  to  him.  —  Tyr.  &  Gran.  118. 

The  defendant  received  from  the  plaintiff  money  to  the  amount 
of,  &c.,  and  gave  his  receipt  therefor  to  the  plaintiff,  specifying 
that  certain  land,  to  wit,  &c.,  was  to  be  entered  therewith.  And 
the  plaintiff,  relying  on  the  assurance  of  the  defendant,  conveyed 
said  land  to,  &c.,  for  whose  use  this  action  is  brought  ;  and  since 
that  time  one,  &c.,  has  entered  the  laud.  —  3  Clarke  (Iowa),  447. 

The  rooms  of  the  plaintiff  were  furnished  with  gas-pipes  and 
fixtures,  which  were  connected  with  the  main  pipes  of  the  defend- 
ants. And  the  defendants  contracted  with  the  plaintiff  to  supply 
his  rooms  with  gas,  until  reasonable  notice  of  intention  to  with- 
hold or  withdraw  the  same.  And  the  defendants  had  for  some 
time,  and  until  the  injury  hereafter  alleged,  supplied  him  with 
gas,  for  which  he  had  paid  them  as  agreed.  And  the  plaintiff  was 
ready  and  willing  to  pay  the  defendants  for  a  continued  supply, 
upon  which  he  was  dependent  for  the  lighting  of  his  rooms,  and 
which  he  desired  the  defendants  to  furnish.     And  it  became  and 


740  APPENDIX. 

was  the  duty  of  the  defendants  to  continue  to  supply  him  with 
gas,  but  they  maliciously  and  wantonl}'  shut  off  the  gas,  and  re- 
fused to  supply  him ;  by  means  of  which  he  was  deprived  of  the 
means  of  lighting  his  rooms  with  gas,  and  put  to  great  expense  in 
procuring  other  means  of  lighting  them.  —  30  Conn.  521. 


INDEX. 


A. 

ABANDONMENT. 

effect  of,  in  ejectment,  18J,  186. 
ABA'J'EMENT. 

in  replevin,  79. 
ABDUCTION, 

damages  for,  GOo. 
ACTS  OF  PARTY, 

■whether  evidence  in  Lis  favor,  458. 
third  person,  whether  evidence,  4G0. 
AD  DAMNUM, 

damages  limited  by,  702,  705, 
ADMINISTRATOR, 

rule  of  pleading  as  to,  262  n. 
ADMISSIONS, 

evidence  of,  4.'>6. 

comparative  weight  of,  and  oibei  evidence,  437. 

of  officer,  537. 
ADULTERY, 

proof  of,  5-10. 
ADVERSE  POSSESSION,  171.     {See  Ejectivient.) 

of  defendant,  as  necessary  to  ejectment,  175. 
AFFIDAVIT, 

in  ejectment,  229  n. 
AFFIRMATIVE, 

burden  of  proving,  391. 
AGENT, 

replevin  in  case  of,  47,  64. 

disseisin  by,  171. 

admission  of,  442. 

and  servant,  damages  in  case  of,  652. 
ALABAMA, 

replevin  in,  77. 

ejectment  in,  219  n. 


742  INDEX. 

AMENDMENT, 

in  replevin,  89. 

case  of  variance,  248 
ANIMALS, 

injury  to,  by  railroads,  pleadings  in  reference  to,  381. 
ANSWER, 

in  ejectment,  207. 
APPLICATION   OF  WRITING, 

parol  evidence  as  to,  494. 
APPRAISAL, 

in  replevin,  74  n. 
APPRENTICE, 

damages  in  case  of,  654. 
ARKANSAS, 

replevin  in,  7  n.,  18,  28  n.,  74  n.,  82  n.,  90  n.,  115. 

ejectment  in,  162  n.,  222  n. 
ASSAULT,  &c. 

pleading  in  case  of,  321. 

evidence,         "         507. 

damages  for,  616. 
ATTACHING   CREDITOR, 

■whether  replevin  lies  against,  43. 
ATTACHMENT, 

replevin  in  case  of,  52,  92. 

constructive,  replevin  in  case  of,  53 

justification  by,  in  replevin,  86. 

proof  of,  637. 

damages  against  officer,  in  case  of,  641. 
AVOIDANCE, 

plea  of,  274. 
AVOWRY,  80. 

in  case  of  distress,  23. 


B. 

BAIL, 

evidence  as  to  sufficiency  of,  538. 

damages  against  officer,  on  account  of,  649. 
BAILEE, 

damages  in  action  by,  662. 
BAILMENT, 

damages  in  case  of,  654. 
BETTERMENTS, 

allowance  for,  in  ejectment,  220. 
BODILY  DISEASE   AND   INJURY, 

declarations  as  to,  whether  evidence,  445. 


INDEX.  74^ 

BOND, 

replevin,  73  n.,  117. 

effect  of,  on  title  to  the  property,  3G. 
BOUNDARIES, 

in  deed,  as  affecting  seisin  and  ejectment,  163. 
BURDEN, 

of  pleading  fraud,  285. 
proof,  in  trespass,  308. 

action  for  assault,  323. 
of  allirmative  and  negative  allegations,  391. 
and  weight  of  evidence,  distinction,  393  n. 

c. 

CALIFORNIA. 

replevin  in,  126,  133,  147  n.,  159  n. 

ejectment  in,  167  n.,  194  n.,  202  n.,  211  n.,  218  n.,  220  n.,  225  n. 

pleading  in,  232  n.,  317. 
CASE, 

action  on  the,  pleading  in,  316,  325. 

and  trespass  compared,  317,  325,  326 
trover,  joinder  of,  335. 

distinguished,  335. 
CERTAINTY, 

in  pleading,  252. 
CHARACTER, 

evidence  of,  442. 

in  action  for  slander,  &c.,  518. 
CHOSES   IN   ACTION, 

replevin  for,  12. 

damages  in  case  of,  670. 
COGNIZANCE, 

in  replevin,  81. 
COLLOQUIUM  AND    INNUENDO, 

in  slander,  349,  350. 
COLOR  OF  TITLE,  174,  179. 

deed  gives,  162,  163. 

by  possession,  171. 

co:mmencement, 

of  replevin  suit,  what,  20. 
COMiMITAIENT, 

neglect  of  officer  as  to,  damages  for,  646. 
COMMOX   CARRIERS, 

joint  a'tion  against,  269, 

pleading  in  case  of,  387. 

evidence,  528. 

damages  in  case  of,  656,  662. 
COMMONWEALTH, 

no  adverse  possession  against,  172,  187. 


744  I^•D""x. 

COMPENSATION, 

as  the  measure  of  damages,  547,  ooO,  597. 
COMPROMISE, 

admissions  for,  440. 
CONCLUSION, 

statement  of.  in  pleading,  260. 
CONDITIONAL   DEED, 

title  by,  in  ejectment,  1G2  n. 

sale,  damages  in  case  of,  6S0. 
CONNECTICUT, 

replevin  in,  19,  21,  22  n.,  28  n.,  73  n.,  74  n.,  121. 

pleading  in,  317  n. 
CONSENT, 

prevents  adverse  title,  172.  176. 

((See  EsTOPPKL.) 
CONSPIRACY, 

declarations  in  case  of,  whether  evidence  455. 
CONSTABLE, 

service  of  replevin  by,  74  n. 
CONSTRUCTIVE  POSSESSION,  174. 
CONTINUANDO, 

in  trespass,  303. 
slander,  353. 

case  of  defective  road,  3S5. 
CONTINUOUS    DAMAGE, 

no  second  action  for,  576. 
CONTRACT, 

of  manufacture,  &c. ;  replevin  in  case  of,  33,  46. 

written,  parol  evidence  as  to,  490,  492. 
CONTRA   PACEM, 

trespass  and  case,  distinction.  325. 

formmn  sialidi,  allegation,  236. 
CONVERSION, 

action  for,  pleading  in,  335. 
evidence  in,  528. 
damages,  590. 
CORPORATION, 

admission  in  case  of,  442. 
COSTS, 

in  connection  with  damages,  680. 
COUNSEL-FEES, 

as  damages,  680. 
COUNTER-CLAIM,  559,  677. 
COUNTING  UPON   AND   PLEADING   STATUTE, 

distinction  between,  303. 
COUNTS, 

joinder  of,  in  case  of  fraud,  285. 
trespass,  311. 


INDEX.  745 


COUNTS  —  continued. 

joinder  of,  in  trespass  and  case,  319. 
action  for  assault,  323. 

slander,  &c.,  249. 
COUNTY, 

replevin  as  to,  74  n. 
COURTS, 

in  what,  replevin  lies,  14. 
CREDITOR, 

whether  liable  to  replevin,  43. 
CRIMINAL  PROSECUTION, 

as  affecting  exemplary  damages,  602. 
CUSTOM, 

pleading  of,  240,  n. 

evidence  of,  433. 
CUSTODY  OF  THE  LAW, 

replevin  of  goods  in,  40. 


D. 

DAMAGE  FEASANT, 

plea  of,  in  trespass,  310,  314. 
DAMAGES, 

in  replevin,  98. 

ejectment,  218. 
mitigation  of,  in  action  for  assault,  321. 
in  action  for  slander,  359. 
as  connected  with  evidence,  544. 
pleading,  544. 
in  contract  and  tort,  compared,  545. 

a  question  for  the  jury,  subject  to  any  legal  rule  or  measure,  545. 
general  and  special,  549,  595. 
none  for  mere  possible  injury,  549. 
de  minimis  non,  &c.,  as  applied  to,  549. 
sometimes  allowed  liberally  ;  exceptions  and  limitations,  550. 
mode  of  ascertaining;  writ  of  inquiry,  551. 
referred  to  arbitrators,  553. 
second  assessment  of,  553. 
nominal,  554. 
mitigation  or  reduction  of,  554. 

reconpment,  556. 

set-off,  556. 

counter-claim,  559. 

equitable  and    statutory  allowances,  559. 

return  of  property  taken ;  application  of  pro- 
ceeds to  the  plaintiff's  benefit,  566. 


746  INDEX. 

DAMAGES  —  contimied. 

at  and  to  what  time  estimated,  670. 

in  general,  the  value  at  the  time  of  tak- 
ing, 570. 
prospective  or  remote,  571,  584. 
to  the  time  of  trial,  576. 
in   case  of  continuing   damage,  no  second 

recovery,  577. 
prospective   damages,  when   not  allowed, 

678. 
miscellaneous  cases,  583. 
remote  damages  caused  by  the  plaintiff's 
act  or  neglect,  58-4. 
for  fraud  or  deceit,  588,  610. 

taking  or  detention  of  personal  property ;   including  trover  and  tres- 
pass, 588. 
in  trover,  590. 

trespass,  593. 
statutory  remedy  for,  593. 
special,  59  . 

nature  and  definitionof,  595. 
must  be  expressly  alleged,  595. 
in  general  limited  to  compensation,  597. 
exemplary,  punitive,  or  vindictive,  597. 

as  depending  on  malice,  insult,  &c.,  598. 

affected  by  actual  or  jpossible  criminal  prosecution  for  the 
same  act,  603. 
for  injuries  not  indictable,  604. 
"vvhen  not  allowed,  607. 

in   case   of  the   plaintiff's  own  miscon- 
duct, 609. 
for  fraud;  value  of  the  property,  610. 
miscellaneous  cases,  611. 
exemplary  damages,  612. 
miscellaneous  cases,  612. 
assault,  &c. ;  exemplary,  616. 

mitigation;  provocation;  criminal  prosecution,  618. 
false  imprisonment,  618. 
injury  to  health,  619. 
libel  and  slander,  620. 

measure   and   grounds   of    damages;     special  and 

exemplary;  wealth  of  the  defendant,  620,  622. 
plea  of  the  truth;  mitigation  of  damages,  623. 
malicious  prosecution,  623. 
negligence,  626. 
nuisance,  628. 

to  watercourse  and  mill,  628. 
patent,  630. 


INDEX.  747 

DAMAGES  —  continued. 

for  nuisance,  to  trade-mark,  631. 
in  case  of  railroads,  632. 

for  injuries  to  person  and  property,  632. 
the  takinjr  of  land,  634. 
towns  and  highways,  636. 
actions  against  public  officers,  638. 

as  affected  by  the  motives,  &c.,  of  the 

defendant,  638. 
for  not  returning  process,  640. 
false  return,  641. 

wrongful  seizure;  action  by  the  de- 
fendant in  the  process,  641. 
loss  of  property,  642. 
in  action   by  third    person    for  seizure 
of  property;    value  of    the  property; 
additional   damages;    motives    of   the 
officer,  643. 
for  neglect  to  levy,  644. 

mitigation    of  damages;   application 
of  proceeds  to  the  plaintiff's  ben- 
efit, &c.,  645. 
neglect  to  arrest,  646. 
escape,  taking  insufficient  bail,  &c., 
647. 
by  officers,  650. 
in  case  of  master  and  servant,  &c.,  652. 

principal  against  agent,  652. 
third    person   against    prin- 
cipal, 654. 
agent,    &c.,    against    prin- 
cipal, &c.,  654. 
against  third  person,  654. 
in  case  of  bailment,  654. 
pledge,  655. 
carriers,  655. 

neglect  or  delay  in  delivering  656. 
injury  from  neglect,  657. 
special  and  prospective  damages,  658. 
miscellaneous  points,  659. 
actions  by  bailees,  662. 
telegrams,  663. 
in  case  of  landlord,  &c.,  664. 

by   reversioner  against   third    person. 
664. 
lessee  against  a  tliird  person,  604. 
third  person  against  K-ssee,  665. 
lessee  against  landlord,  666. 


748  INDEX. 

DAMAGES  —  continued. 

in   case   of   landlord,    &c., distress,  667. 

fraud,  667. 
landlord  against  tenant,  668. 
in  case  of  mortgage,  668. 

for  conversion,  &c.,  of  negotiable  securities,  670. 
neglect  in  collection  of  negotiable  securities,  672. 
refusal  to  transfer  stock,  673. 
miscellaneous  cases  of  securities,  673. 
in  case  of  sale,  676. 

buyer  against  seller;  refusal  to  deliver;  conver- 
sion, &c.,  676. 
conditional  sale,  676. 
fraud,  677. 
interest,  as,  678. 
costs  and  expenses,  as,  680. 
for  injuries  resulting  in  death,  684. 

in  case  of  husband,  &c.,  parent,  &c.,  seduction;  abduction,  694.. 
marine  torts,  696. 

profits  of  a  voyage,  696. 
collision,  696. 
capture,  697. 

liability  of  master  and  owner,  698. 
joint  and  several,  699. 
statutory;  double,  treble,  &c.,  701. 
limited  by  the  declaration  and  ad  damnum,  702. 

remittitur,  703. 
excessive,  new  trial  for,  704, 
too  small,  707. 
miscellaneous,  708. 
DEATH, 

of  party  in  replevin,  63. 
injuries  causing,  pleading  in  case  of,  240  n. 
damages  in  case  of,  684. 
DECEIT, 

damages  for,  588.  (/See  Fraud.) 

DECLARATION, 

in  replevin,  74. 
ejectment,  201. 
trespass,  301. 
for  negligence,  329. 
slander,  317. 
special  damages,  695. 
damages  exceeding,  702. 
DECLARATIONS, 

■when  evidence,  444.     {See  Evidence.) 
of  party  in  his  own  favor,  458. 
in  case  of  officers,  535. 


INDEX.  749 


DEED, 

parol  evidence  as  to,  490. 

title  by,  in  ejectment,  1G2. 
DEFAULT, 

damages  upon,  551. 
DEFINITION, 

of  replevin,  1. 
DE  INJURIA,   &c., 

replication  of,  in  trespass,  313. 

action  for  assault,  322,  323. 
DELAWARE, 

replevin  in,  25,  84,  99  n.,  101  n.,  115,  117  n.,  122,  124. 

pleading  in,  320. 
DELIVERY 

of  goods  to  plaintiff  in  replevin,  3. 
DEMAND, 

in  replevin,  90. 
DE  MINIMIS  NON,   &c., 

construction  of,  549. 
DEMURRER, 

inquiry  of  damages  upon,  334. 
DENIAL, 

of  what,  the  general  issue  is,  277. 
DEPARTURE, 

in  pleading,  250. 
DESCRIPTION  OF  PROPERTY, 

in  replevin,  74, 
trespass,  302. 
trover,  336. 
DESCRIPTIO  PERSONJE, 

in  pleading,  263  n. 
DETAINER, 

■whether  sufficient  to  sustain  replevin,  3. 
DETINUE   AND   REPLEVIN, 

compared,  5. 
DEVISEES, 

ejectment  by,  189. 
DILATORY   PLEAS, 

in  replevin,  78. 
DIRECTNESS, 

in  pleading,  262. 
DISCLAIMER, 

in  ejectment,  211. 
DISEASE, 

declarations  as  to,  when  evidence,  445. 
DISMISSAL  OF  REPLEVIN,   79. 
DISSEISIN,  139.     (See  Ejectment.) 

as  between  tenants  in  common,  198. 


750  INDEX. 

DISTEESS, 

repl(!vin  in  case  of,  16,  22. 

justification  by,  in  replevin,  86. 

damajjes  in  case  of,  6G7. 
DOCUMENTARY  EVIDENCE  OF   TITLE, 

in  ejectment,  156. 
DOUBLE   PLEADING, 

in  action  for  slander,  617. 
replevin,  85. 
DWELLING-HOUSE, 

entry  of,  pleading  in  reference  to,  377. 

E. 

EASEMENT, 

ejectment  in  case  of,  181  n. 
pleading  in  i-elation  to,  368. 
EJECTMENT,  139. 

real  action,  and  writ  of  entry  —  synonymous  in  the  United  States,  139. 
substituted  for  the  ancient  remedies,  139  n. 
entry,  as  connected  with,  143. 
title  necessary  to,  144. 

in  case  of  conflicting  titles  ;  claimants  under  one  person,  145. 
defence  to;  title  of  a  stranger,  146. 
whether  an  equitable  title  sustains,  148. 
in  case  of  a  mere  purchase,  152. 
founded  on  documentary  title,  156. 
deed,  162. 
purchase,  164. 
execution,  165. 

adverse  title  as  connected  with  possession,  167. 
as  connected  with  adverse  possession;  ouster;  disseisin,  171. 
founded  on  constructive  possession,  174, 
possession  oxAy  prima  facie  maintains,  180. 
as  depending  on  possession  of  the  defendant,  181. 

continuous  or  successive  possession,  182. 
notice,  as  aflTecting  the  title  necessary  to,  184. 
estoppel,  as  affecting  the  title  necessary  to,  184. 
abandonment,  as  affecting  the  title  necessary  to,  185. 
parties  in  —  the  Commonwealth,  187. 

beneficial  owner,  187. 

in  case  of  death  —  heirs,  &c.,  188. 

persons  claiming  under  the  defendant,  192. 

joint  ownei's,  193. 
pleading  in,  201. 
evidence  in,  213. 
damages  in,  218, 
verdict  and  judgment  in,  220. 


INDEX.  751 

ELEGIT, 

title  by,  in  ejoctment,  166  n. 
ENTICING   AWAY   OF   WIFE, 
evidence  in  relation  to,  542. 
ENTRY, 

as  relating  to  seisin  and  ejectment,  143. 
what  is  an  adverse,  172. 
EQUITABLE   TITLE, 

whether  ejectment  lies  upon,  148. 

a  defence  in  ejectment,  160 
ESCAPE, 

pleading  as  to,  379. 
damages  for,  647. 
ESTOPPEL, 

to  deny  title,  184. 
by  admission,  459. 
EVIDENCE, 

general  rules  of,  391. 

proof  of  the  affirmative,  and  exceptions,  391. 

in   case    ot  wrong,  &c.,  393. 
fraud,  394. 
official  neglect,  &c., 
395. 
as  to  possession,  174,  395. 
burden  of  proof,  to  what  it  extends,  397. 

change  of,  397. 
nonsuit  for  want  of,  402. 
presumptions,  402. 

of  innocence,  403. 
reasonable  doubt,  403. 
miscellaneous  cases  of  presumption,  405. 
rebutting,  406. 
of  opinion  —  experts,  410. 

in  case  of  the  taking  of  land  for  railroads,  &c.,  414. 

other  cases  relating  to  land,  416. 
as  to  injuries  arising  from  defective  roads,  &c.,  417. 

bodily  health  and  disease,  417. 
predicated  upon  hypothetical  facts,  420. 
miscellaneous  cases,  422. 
of  intention,  428. 
reputation  and  character,  429. 
rumor  and  report,  432. 
custom  and  usage,  433. 
distinction   in  the  admission  of,  between  general   reputation,   &c.,   and 

particular  facts,  434. 
of  admissions,  436. 

how  controlled  and  construed  —  implied,  437. 
by  way  of  compromise,  440. 


752  INDEX. 

EVIDENCE  —  continued. 

of  admissions  of  agents,  officers,  &c.,  442. 

connected  or  unconnected  with  acts  ;  questions  of  time,  442. 
declarations  —  hearsay  —  res  gestcB,  441,  458. 
in  case  of  bodily  injury,  &c.,  445. 
boundary  and  title,  448. 
legal  process,  449. 
miscellaneous,  450. 

limitations  as  to  the  admission  of;  must  be  exjylanatory ,  not 
narrative;  questions  of  time,  place,  motive,  and  pui-pose, 
450. 
of  joint  party,  455. 

in  a  party's  own  favor,  accompanying  acts ;  res  gestce,  458. 
estoppel  by,  459. 
of  third  persons,  460. 
'  as  to  possession,  460. 

pei'sons  connected  with  a  party,  461. 
as  to  fraud,  463. 
title,  465. 
of  acts  of  a  party  or  his  agent,  468. 
written  declarations,  470. 
irrelevant  declarations,  473. 
res  inter  alios,  474. 

fraud,  474. 

neglect,  478. 

illegality,  478. 

in  actions  against  towns,  railroads,  &c.,  478. 

for  injuries  caused  by  gas,  481. 
time,  483. 

common  reputation,  484. 
value  and  amount,  485. 
motive,  intent,  malice,  487. 
parol,  489. 

in  case  of  fraud,  489. 
as  to  deeds,  490. 
leases,  491. 
contracts,  492. 
return  of  officer,  492. 
in  case  of  loss,  492. 
as  to  the  application  of  writing,  494. 
variance  of,  from  pleadings,  496. 
of  parties,  497. 
in  actions  relating  to  fraud,  501. 

assault,  &c.,  323,  507. 
false  imprisonment,  508. 
injury  to  health,  509. 
for  libel,  &c.,  511. 

proof  of  other  words  than  those  alleged,  oil. 


INDEX.  753 

EVIDENCE  —  conUmied. 

in  actions  for  libel,  &c.,  understanding  of  the  words,  511. 
damages,  512. 
variance,  513. 
malice,  514. 
mitigation  of  damages,  516. 

repetition,  516. 
report,  516. 
character,  517. 
proof  of  property,  51S. 

the  truth  as  a  justification,  or  in  mitigation,  519. 
for  malicious  prosecution,  523. 
injury  to  watercourse,  526. 

way,  526. 
negligence,  528. 
conversion,  528. 
injury  to  copyright,  529. 
patent,  5.30. 
relating  to  public  officers,  531. 

being  reputed  and  act- 
ing as  an  officer,  531. 
presumption  &  burden 
of  proof,  531. 
officer's  return,  533. 
declarations  and  admissions,  535. 
records,  writs,  executions,  &c.,  537. 
miscellaneous  cases,  537. 
relating  to  husband,  &c.,  540. 

proof  of  marriage,  540. 
adulter)^  540. 
abduction  of  wife,  542. 
parent  and  child  —  seduction,  542. 
abduction,  543. 
n  replevin,  89. 

as  to  adverse  possession,  177. 
in  ejectment,  213. 


F. 


FACTS, 

whether  pleading  must  state,  233. 
FALSE    IMPRISONMENT, 
pleading  in  case  of,  340. 
and  malicious  prosecution  compared,  340. 
evidence  in  case  of,  508. 

return,  damages  for,  641. 

8 


754  INDEX. 

FEEDING, 

of  cattle  impounded,  19. 
FEELINGS, 

damages  in  reference  to,  546. 
FIELD-DRIVER, 

replevin  against,  19,  20. 
FINE, 

title  by,  in  ejectment,  136  n. 
FIRE, 

loss  by,  damages  in  case  of,  634. 
FIXTURES, 

whether  replevin  lies  for,  11. 
FLORIDA, 

replevin  in,  122. 

ejectment  in,  194  n. 
FOREIGN  LANGUAGE, 

slander  in,  353. 
FRAUD, 

replevin  in  case  of,  64. 

certainty  of  pleading  in  reference  to,  257 

pleading  in  case  of,  284 

variance  in  case  of,  294. 
•'^■—-  must  be  affirmatively  proved,  394. 

•whether  it  may  be  proved  by  other  transactions,    7-4 

parol  evidence  of,  489. 

evidence  in  case  of,  501. 

damages  for,  588,  610. 

mitigation  of  damages  for,  707, 

,G. 

GAS, 

injury  caused  by,  evidence  as  to,  481. 
GENERAL, 

evidence  of  character  must  be,  434 
damages,  549. 
issue,  plea  of,  279. 

in  ejectment,  207. 
trespass,  307. 
assault,  &c.,  321,  323. 
trover,  337. 

action  for  false  imprisonment,  342. 
slander,  &c,,  355. 
GEORGIA, 

replevin  in,  7  n. 
ejectment  in,  208  n. 
GRANT, 

title  by,  in  ejectment,  157  n. 


INDEX.  755 


H. 


HEALTH, 

evidence  of  opinion  as  to,  419. 

injury  to,  damages  for,  619. 

(See  Evidence,  Opinion.) 
HEARSAY   EVIDENCE,  444,  460. 
HEIRS, 

ejectment  by,  133. 
HIGHWAY, 

defective,  pleading  in  case  of,  384. 

evidence  of  opinion  in  case  of,  417. 
application  of  the  rule  res  inter  alios  in  case  of,  478. 
HOLDING  OVER, 

not  adrerse,  172. 
HUSBAND   AND   WIFE, 

replevin  in  case  of,  64. 

ejectment  in  case  of,  196. 

when  proper  parties  to  an  action,  266. 

whether  parties  in  case  of  fraud,  291, 

pleading  in  case  of,  389. 

evidence  in  case  of,  540. 

damages  in  case  of,  094. 
HYPOTHETICAL  OPINION, 

whether  evidence,  420. 


I. 

ILLEGALITY, 

must  be  affirmatively  proved,  395. 

proof  of,  application  of  the  rule  res  inter  alios,  478. 
ILLINOIS, 

replevin  in,  74  n.,  82  n.,  85,  99  n..  101  n.,  127. 

ejectment  in,  139  n.,  145  n.,  156  n.,  187  n.,  228  n. 

pleading  in,  306. 
IMMATERIAL   AVERMENTS, 

in  pleading,  245. 
IMMEDIATE  INJURY, 

whether  pleadings  must  allege,  240. 
IMPLIED   POSSESSION,  174. 

admission,  443. 
IMPOUNDING, 

replevin  in  case  of,  16. 
IMPROVEMENTS, 

allowance  for,  in  ejectment,  220,  560. 


756  INDEX. 

INDIANA, 

replevin  in,  7  n.,  14  n.,  28  n.,  74  n.,  77,  81  n.,  114  n. 

pli-ading  in,  232  n.,  284  n.,  356  u. 
INDORSEMENT, 

of  replevin  writ,  73  n. 
INFANT, 

ejectment  in  case  of,  193. 
INFERENCE, 

statement  of,  in  pleading,  260, 
INNKEEPER, 

pleading  in  case  of,  387. 
IN  PARI  DELICTO, 

-whether  declaration  must  negative,  239. 

effect  of,  on  damages,  584,  609. 
INSANITY, 

declarations  whether  evidence  as  to,  446  n. 
INTENTION, 

gives  character  to  possession,  172,  177. 

evidence  of,  428,  487.  * 

INTEREST, 

as  damages,  679. 
IOWA, 

ejectment  in,  151,  192,  218,  222  n. 

party  to  suit  in,  264. 
IRRELEVANT   DECLARATIONS,  473. 
ISSUABLE   FACTS, 

in  pleading,  233. 


J. 
I 

JOINDER, 

of  actions,  237. 

tort  and  contract,  282. 

counts  in  case  of  fraud,  285. 

parties  in  case  of  fraud,  293. 

causes  of  action,  294. 

counts  in  trespass,  303. 

causes  of  action  in  trespass,  310. 

case  and  trespass,  316,  318. 
JOINT-TENANTS,  «&c. 

replevin  in  case  of,  58. 

parties,  ejectment  by,  19L 

tenants,  «&c.,  ejectment  in  case  of,  193. 
pleading  in  case  of,  213. 

parties  to  actions,  266. 

declarations  and  admissions  in  case  of,  455. 

and  several  damages,  699. 


INDEX.  757 


JUDGMENT, 

ejectment  founded  upon,  157  n. 

in  ejectment,  223. 
replevin,  lOG. 
JURY, 

question  of  possession  is  for  the,  173. 

whether  bound  by  a  measure  of  damages,  54:7,  550. 
JUSTICE  OF  THE  PEACE, 

replevin  before,  13  n. 

pleading  in  reference  to,  372. 

damages  against,  G.')S  n. 

jurisdiction  of,  as  to  land,  309.  ^ 

JUSTIFICATION, 

in  action  for  slander,  &c.,  355,  519. 

K. 

KENT,  CHANCELLOR, 

remark  of,  on  pleading,  232  n. 
KENTUCKY, 

replevin  in,  3  n.,  69,  73  n.,  74  n.,  79,  106  n.,  121. 
ejectment  in,  145  n.,  218  n. 
pleading  in,  232  n.,  284  n.,  317. 
parties  in,  265. 

L. 

LAND-DAMAGES, 

opinion  as  to,  whether  evidence,  414. 

amount  of,  in  case  of  railroad,  634. 
LANDLORD,  &c., 

pleading  in  relation  to,  389. 

ejectment  in  case  of,  229. 

damages  in  case  of,  664. 
LEASE, 

parol  evidence  as  to,  490. 
LEASED  PROPERTY, 

replevin  for,  32. 
LIBEL,  &c., 

pleading  in  case  of,  347. 

evidence  in  case  of,  511.  ' 

damages  in  case  of,  620. 
LICENSE, 

defence  of,  in  trespass,  307,  312,  314. 
LIEN, 

replevin  in  case  of,  64,  71. 
LIGHTS, 

pleading  in  relation  to,  368. 


758  INDEX. 

LOCAL, 

replevin  is,  12. 

■whether  action  for  assault  is,  321  n. 
nuisance  is,  327. 
LOSS  OF  WRITING, 

parol  evidence,  492. 
LOUISIANA, 

ejectment  in,  1G7  n. 

M. 

MAINE, 

replevin  in,  27  n.,  73  n.,  74  n.,  82  n.,  100  n.,  129,  218  n. 

ejectment  in,  211  n. 

pleading  in,  317. 
MALICE,  348,  359,  487,  511,  514,  598. 
MALICIOUS  PROSECUTION, 

and  false  imprisonment,  340. 

pleading  in  case  of,  359. 

evidence  in  case  of,  523. 

damages  for,  623. 

arrest,  damages  for,  73  n.,  618. 
MANUFACTURE  TO  ORDER, 

replevin  in  case  of,  33,  46. 
MARRIAGE, 

proof  of,  540. 
MARINE  TORTS, 

damages  for,  696. 
MARSHAL  OF  UNITED  STATES, 

replevin  against,  14. 
MARYLAND, 

replevin  in,  27  n.,  77  n.,  85. 

ejectment  in,  159  n. 
MASSACHUSETTS, 

replevin  in,  3  n.,  8  n.,  12  n.,  18,  20,  21,  69,  73  n.,  77,  81  n.,  115,   123, 
127,  220  n. 

ejectment  in,  211  n.,  218  n.,  228  n. 

pleading  in,  319,  347,  357. 
MASTER,  &c., 

replevin  in  case  of,  64. 

pleading  in  case  of,  386. 

admissions  in  case  of,  442. 

damages  in  case  of,  654. 
MEASURE  OF  DAMAGES, 

whether  jury  bound  by,  547,  550. 
MEDICAL  WORKS, 

whether  evidence,  419. 
MESNE  PROFITS, 

action  for,  218,  320. 

deductions  from,  560. 


INDEX.  759 

MRXrCAX  LAW, 

as  to  adverse  possession,  177  n. 
MICHIGAN, 

replevin  in,  3  n.,  18,  7-4  n.,  81  n.,  85  n.,  101  n. 

ejectment  in,  221  n. 
MILL, 

damages  for  injury  to,  G16. 
MINNESOTA, 

replevin  in,  7  n.,  14  n.,  27  n.,  103  n. 

ejectment  in,  203,  218  n. 

joint  parties  in,  267. 
MISSISSIPPI, 

replevin  in,  8  n.,  25,  91  n.,  98  n.,  103  n. 

ejectment  in,  157  n.,  213  n.,  218  n.,  228  n. 

pleading  in,  232  n. 
MISSOURI, 

replevin  in,  7  n.,  14  n.,  27  n.,  40  n.,  81  n.,  98  n.,  101  n.,  115,  126. 

ejectment  in,  145  n.,  151,  218  n. 

j.leading  in,  284  n.,  333. 
MISTAKE, 

replevin  in  case  ot,  67. 
MITIGATION  OF  DAMAGES,  556. 

pleading  in  reference  to,  276. 

and  partial  defence,  distinction,  276  n. 

in  trespass  —  pleading,  307  n, 
action  for  assault,  617. 
slander,  636. 
against  officers,  639,  644,  646. 
MOLLITER  MANVS,  &c., 

plea  of,  in  action  for  assault,  &c.,  322. 
MORTGAGE, 

replevin  in  case  of,  68. 

title  by,  in  ejectment,  160  n. 

damages  in  case  of,  668. 
MOTIVE, 

evidence  of,  487. 

N. 

NARRATIVE  DECLARATIONS, 

incompetent,  448,  453. 
NEGATIVE 

and  positive  evidence  —  burden  of  proof,  391,  and  n. 

pregnmit,  338. 
NEGLIGENCE, 

pleading  in  case  of,  329. 

must  be  affirmatively  proved,  393. 

whether  provable  by  other  transactions,  478. 


760  INDEX. 

NEGLIGENCE  —  continued. 

evidence  concerning,  628. 

damages  for,  626. 
NEW  ASSIGNMENT, 

in  trespass,  315. 

action  for  assault,  324. 

nuisance,  327. 
trover,  338. 
NEW  HAMPSHIRE, 

replevin  in,  6  n.,  18,  113. 

ejectment  in,  191  n.,  211  n. 

pleading  in,  265. 
NEVADA, 

ejectment  in,  193  n.  ' 

NEW  TRIAL, 

in  ejectment,  229. 

for  excessive  damages,  704,  708. 
too  small  damages,  707. 
NEW  YORK, 

replevin  in,  7  n.,  22  n.,  27  n.,  55,  74  n.,  77,  82  n.,  91  n.,98n.,  100, 114  n. 
126,  132. 

ejectment  in,  139  n.,  183  n.,  187  n.,  192  n.,  204,  218  n.,  227  n. 

pleadmg  in,  254,  261,  266,  302  n.,  328,  335,  336,  343,  351  n.,  356. 

parties  in,  267,  268. 
NOMINAL  DAMAGES,  549,  554.     {See  Damages.) 
NON  CEPIT, 

in  replevin,  81,  108. 
NON-TENURE, 

in  ejectment,  211.  ' 

NORTH  CAROLINA, 

replevin  in,  7  n.,  27  n.,  103  n.,  218  n. 

ejectment  in,  180  n. ,  208  n. 
NOTES, 

wrongs  relating  to,  damages  for,  670. 
NOTICE, 

in  reference  to  adverse  possession,  184. 

to  one  party,  effect  on  burden  of  proof,  402. 
NUISANCE, 

action  for,  pleading  in,  326,  327. 
damages,  627. 


o. 


OFFICER,  defence  of,  in  replevin,  48,  85. 
replevin  in  case  of,  52,  92. 
pleading  in  case  of,  372. 


INDEX.  761 


OFFICER  —  continued. 

evidence  in  case  of,  531. 

damages  in  case  of,  638,  650. 
OHIO, 

replevin  in,  7  n.,  55,  70,  82  n.,  85  n.,  98  n.,  117  n. 

pleading  in,  220. 
OPENING  AND   CLOSING, 

right  of,  in  trespass,  308. 
OPINION, 

evidence  of,  410.     (See  Evidence.) 
OUSTER.     (See  Disskisin,  Ejkctmkxt.) 

as  between  tenants  in  common,  198. 
QWNER,  plaintiff  in  ejectment  must  be,  144. 


PARENT,  &c. 

evidence  in  case  of,  542. 

damages  in  case  of,  C94. 
PARISH, 

replevin  in  case  of,  64. 
PAROL   EVIDENCE,  48U.     (.See  Evidence.) 

in  ejectment,  217. 
PART-POSSESSION, 

in  ejectment,  163,  178. 

of  wild  lands,  175. 
PARTICULARS. 

order  for,  in  case  of  slander,  354. 
PARTIES, 

in  replevin,  58. 
ejectment,  187. 
action  for  tort,  202. 

plaintiffs,  who  must  be  —  party  injured  —  the  legal  owner,  262. 

name  and  description  of,  265. 

joint-plaintilFs,  266. 
defendai>ts,  269. 

pleading  in  case  of,  271. 

in  case  of  trust,  272. 
PARTNERS, 

replevin  in  case  of,  60. 

ejectment  in  case  of,  196. 
PARTY, 

testimony  of,  497. 

as  to  intention,  428,  487. 

whose  admissions  are  evidence,  436. 
PATENT, 

title  by,  in  ejectment,  157  n. 


762  INDEX. 

PATENT  —  contimied. 

pleading  in  case  of,  369. 

damages  in  case  of,  630. 

evidence  in  case  of,  530. 
PENNSYLVANIA, 

replevin  in,  1  n.,  3  n.,  7  n.,  77,  98  n.,  101  n.,  115. 

ejectment  in,  145  n.,   162  n.,  189  n.,  192  n.,  212,  218  n.,  223,  224  n., 
227  n.,  228  n. 

parties  in,  2G7. 
PEOPLE, 

title  of,  presumption  as  to,  167  n.     (See  Commonwealth.) 
PERSONAL   PROPERTY, 

replevin  lies  for,  9. 
PHYSICIAN, 

opinion  of,  as  evidence,  419.     {See  Evidence.) 

declarations  to  and  by,  whether  evidence,  445,  446. 

action  against,  evidence  in,  509. 
PLACE, 

allegation  of,  in  action  for  nuisance,  327. 
conversion,  336. 

in  case  of  false  imprisonment,  344. 

of  making  declarations  as  affecting  admissibility,  455. 

of  replevin,  12. 

in  the  action  of  trespass,  allegation,  of,  302. 
assault,  321  n. 
PLAINTIFF, 

"who  must  be,  262. 
PLEADING, 

in  replevin,  78. 

against  officer,  48. 

in  ejectment,  201,  207,  231. 

as  connected  with  damages,  544,  595. 

general  rules  of,  231. 

tort  and  contract;  definition  and  general  purposes  of  pleading,  231. 

statute  law  concerning,  232. 

must  state  facts,  233. 

in  case  of  statutes,  234. 

in  reference  to  the  directness  of  the  injury,  238. 

absence  of  fault  in  the  plaintitf,  239. 

variance  between,  and  evidence,  242, 

tndli,  as  a  requisite  of,  250. 

departure  in,  250. 

directness,  &c.,  of,  252. 

in  case  of  fraud,  257. 

statement  in,  of  a  legal  conclusion,  260. 

general  issue,  &c.,  in,  274. 

as  a  defence,  274. 
in  mitigation,  276. 


INDEX,  703 

PLEADING  —  continved. 

general  issue,  &c.,  in,  wliat   is    denied    by;  implied    admission;   aet    and 
right,  277. 
miscellaneons  points  as  to,  279. 
replication,  ite.,  in,  279. 

distinction  ol'  tort  and  contract  in  reference  to ;  nii.'^j<jindcr,  282. 
in  case  of  fraud,  284. 

parties,  291. 

joint.  29:1. 
joinder  of  different  frauds,  294. 
variance  294. 

committed    by  the  plaintiff;  rescinding   and  restitution, 
29G. 
in  trespass,  301. 

declaration,  301. 

description  of  property,  301. 
in  case  of  statute,  303. 
time  —  continuando,  303. 
number,  303. 
pleas,  305. 

general  issue  and  justification,  305. 

statutory  changes  as  to,  30tj. 

of  title  before  justices  of  the  peace,  309. 

miscellaneous,  310. 

joinder  of  action  ;  trespass  to  land,  goods,  &c,  ;  several 

counts,  310. 
replication,  313, 
new  assignment,  314. 

joinder  of  trespass  and  case;  statutory  changes,  31G. 
to  the  person;  assault  and  battery,  320. 
action  on  the  case,  325. 
for  nuisance,  32G. 

declaration,  326. 
sub>e(juent  pleading,  32G. 
negligence,  329. 

declaration,  329. 
subsequent  pleading,  332. 
conversion,  335. 

declaration,  33G. 
subsequent  pleadings,  337. 
false  imprisonment,  — declaration,  310. 

subsequent  pleadings,  342. 
libel  and  slander,  347. 

declaration,  347. 

counts,  349. 

joinder  of  slander  and  nialieious 

prosecution,  350. 
innuendo,  550. 


76-i  INDEX. 

PLEADING  —  coniinued. 

in  action  for  libel  and  slander,  declaration,  colloquium,  351. 

words  in  foreign  language,  353. 
mieellaneous  points,  353. 
variance,  354. 
practice,  354. 
subsequent  pleadings ;  the  general  issue  ;' 
the  truth, &c.,  355. 
malicious  prosecution,  359. 
injuries  to  property,  302. 
possession,  3G2. 
watercourse,  &c,,  362. 
lights,  368. 
other  easements,  368. 
patent,  369. 

relative  rights  —  officers  of  the  law,  372. 
against  railroads,  379- 

towns  for  defective  roads,  384. 
relating  to  master  and  servant,  386. 
against  inn-keepers,  386. 

common  carriers,  386. 
relating  to  landlord,  &c.,  389. 
crim.  con.  and  seduction,  389. 
PLEAS, 

in  trespass,  305.     (*See  Tkespass.) 
trover,  337. 

action  for  false  imprisonment,  342. 
PLEDGE, 

replevin  in  case  of,  71. 
damages  in  case  of,  652. 
POLICY  OF   INSURANCE, 
damages  in  case  of,  675. 
POSSESSIO  PEDIS,  173. 

fratris,  200. 
POSSESSION, 

of  plaintiff,  as  necessary  to  replevin,  27. 

defendant  as  necessary  to  rejilevin,  54. 
allegation  of,  in  replevin,  77. 
right  to,  in  ejectment,  144,  167. 
part,  in  ejectment,  144. 
allegation  of,  362. 

presumption  and  burden  of  proof  as  to,  395,  402  n. 
POUND -KEEPER, 

replevin  against,  18. 
PRACTICE, 

in  action  for  slander,  354. 
ejectment,  229  n. 
PRESCRIPTION, 

title  by,  144  n. 


INDEX.  765 


PRESUMPTIONS,  289,  397,  402.     {See  Evidence.) 

in  case  of  oiiicer,  5ol. 
PRIMA  FACIE  EVIDENCE, 

of  title,  possession  is,  180. 

cbanges  burden  of  proof,  393,  397,  405,  and  n. 

in  case  of  officers,  531, 
PRINCIPAL,  &c., 

replevin  in  case  of,  64. 

fraud  in  case  of,  pleading,  296. 

damages  in  case  of,  652. 
PRIVITY, 

allegation  of,  whether  necessary  in  case  of  fraud,  291. 
PROCESS, 

justification  under,  in  action  for  false  imjjrisonment,  344. 
PROPERTY, 

in  case  of  replevin,  27,  44. 

what,  may  be  taken  in  replevin,  41. 

plea  of,  in  replevin,  82. 

allegation  of,  in  trespass,  304. 
trover,  336. 

evidence  of,  in  case  of  slander,  &c.,  518. 
PROSPECTIVE  DA3IAGES,  571,  578. 
PUBLICATION, 

allegation  of,  in  slander,  348. 
PUNITIVE   DAMAGES,  598. 
PURCHASE   ON   EXECUTION, 

replevin  in  case  of,  52. 
PURCHASER, 

ejectment  by  and  against,  152. 

possession  oi",  whether  adverse,  164. 


RAILROAD, 

injuries  by,  pleading  in  case  of,  240,  379. 

taking  of  land  by,  opinion  in  case  of,  414. 

injuries  by,  opinion  in  case  of,  417. 
evidence  as  to,  478. 

damages  against,  631. 

for  injuries  causing  death,  684. 
REAL  ACTION,  139.  {See  Eject.mknt,  Disseisin.) 
REAL   ESTATE, 

whether  rc])levin  lies  for,  9. 
REASONABLE   DOUBT, 

in  actions  for  tort,  405. 
REBUTTING  EVIDENCE,  406,  430. 

as  to  declarations,  455. 


766  INDEX. 

RECEirTOR, 

replevin  in  case  of,  52. 
RECEIVP:il, 

in  ej(H'tnient,  229. 
RECORD, 

admission  by,  whether  evidence,  441. 
RECOUPMENT,  556.     {See  Damages.) 
REJOINDER,  281. 

in  action  for  assault,  323. 
RENT, 

replevin  in  case  of,  22. 
REPETITION   OF   SLANDER, 

evidence  of,  514,  516. 
REPLEVIN,  1. 

definition  and  general  nature,  1. 

delivery  of  goods  to  the  plaintiff,  3. 

whether  tortious  taking  is  necessary  to,  3. 

lies,  in  general,  only  for  personal  property,  9. 

a  local  action,  12. 

in  what  courts  to  be  brought,  13. 

successive  replevins,  14. 

in  case  of  distress,  impounding,  &c.,  16. 

trespass  ah  initio,  16. 
practice  in  different  States,  18. 
for  rent,  22. 

pleading,  evidence,  &c.,  22. 
miscellaneous  points,  25. 
property,  »&c.,  necessary  to  maintain,  27. 

right  of  possession,  27. 
qualified  possession,  &c.,  29. 
the  plaintiff  must  prevail  upon   his 
own  title,  30. 
pleading,  evidence,  &c.,  in  reference  to,  31. 
manufacture  to  order,  incomplete  sale,  &c.,  33. 
in  case  of  death,  36. 
title  gained  by  service  of  a  replevin   and  bond  ;  sale  by 

the  plaintiff  in  replevin,  3G. 
property  or  possession  requisite  in  the  defendant,  38. 
for  property  taken  by  process,  40. 

cv.slody  of  the  law,  40. 
for  goods  in  the  plaintiff's  possession,  41. 
taken     on     process     against     a 
stranger,  41. 
writ  of,  wh:;t  may  be  taken  on,  42. 
liability  of  attaching  or  execution  creditor,  43. 
title  or  possession  necessary  to,  in  case  of  legal  process,  44. 
defence  of  an  oilicer  sued  in  —  plea,  evidence,  judgment,  &c.,  48. 
in  case  of  successive  processes,  49. 


INDEX. 


767 


REPLEVIN  —  continued. 

ill  favor  of  an  officer,  52. 

against  an  officer,  what  possession  of  the  officer  is  necessary  to,  53. 

successive  suits  of,  justification  of  the  officer  under  replevin  writ,  54. 

miscellaneous  points  relating  to  process,  54. 

parties  in,  5S. 

joint  plaintiffs,  58. 

defendanls,  61. 
in  case  of  death,  (33. 
husband,  &c.,  04. 
principal  and  agent,  64. 
parish,  04. 
buyer  or  seller  — fraud,  64. 

cond   ioiial  sale,  07. 
mistake,  67. 
in  case  of  mortgage,  pledge,  or  lien,  68. 
pleadings  and  practice  in,  73. 

writ  and  declaration,  74. 

description    of    property, 


74. 
statement  of  title,  77. 


plea,  &c.,  78. 


motion  to  disuiiss,  78. 
avoicry  and  cognizance,  81. 
non  cepit,  &c.,  81. 
title,  81. 

several  pleas,  85. 
in  case  of  process,  85. 
replication,  &c.,  87. 
amendment,  89. 
evidence,  89. 
verdict,  95. 
damages,  98. 

verdict  and  judgment  in  special  cases,  100. 
judgment  for  return,  lOS. 
bond,  117. 

form  of — informality,  117. 
time  of  suit  on,  I2ij. 
damages  on,  126. 
defence  to,  129. 
pleading  and  evidence,  133. 

construction  of;   proi^ecution  of  suit,  final  judgment,  &c.,  133. 
death,  in  case  of,  137. 
in  case  of  review,  137. 
REPLICATION,  279,  281. 
in  replevin,  87. 
tn-spass,  313. 
action  for  assault,  322,  323,  324. 


7,68  INDEX. 

REPLICATION  —  continued. 

in  action  for  negligence,  334. 
conversion,  338. 
false  imprisonment,  344,  345. 
REPORT, 

evidence  of,  432. 
REPUTATION, 

evidence  of,  429,  484. 
BES  OEST^, 

evidence,  444,  458. 
BES  INTER  ALIOS  ACTA,  474.  (.See  Evidence.) 

RESTITUTION  IN  EJECTMENT,  228  n. 
RETURN, 

judgment  for,  in  replevin,  108. 

of  officer,  as  evidence,  533. 

property,  whether  a  mitigation  of  damages  for,  566. 
process,  neglect  of —  damages,  640,  644. 
RHODE  ISLAND, 

ejectment  in,  139. 
RUMOR, 

evidence  of,  432. 

s. 

SALE, 

by  plaintiff  in  replevin,  effect  of,  36. 

damages  in  actions  connected  with,  676. 
SECURITIES, 

damages  in  actions  relating  to,  670. 
SECURITY, 

in  ejectment,  229. 
SEDUCTION, 

pleading  in  case  of,  390. 

evidence  in  case  of,  540,  542. 

damages  in  case  of,  694. 
SEPARATION 

of  the  product  of  land,  damages  for,  548  n.,  589. 
SERVANT, 

admission  and  declaration  of,  whether  evidence,  442. 
SHERIFF.     (See  Officer.) 
SLANDER.     (See  Libel.) 
SMALL  DAMAGES, 

new  trial  for,  707. 
SON  ASSAULT,  &c.,  322. 
SOUTH  CAROLINA, 

replevin  in,  28  n.,  124. 
SPECIAL  PROPERTY, 

replevin  in  case  of,  28. 

damages,  549,  695. 


INDEX.  769 


SPECIFIC  PERFOR:\rANCE, 

ejectment  to  compel,  lo3. 
STATE, 

no  adverse  possession  against,  172,  187. 
STATUTE, 

of  limitations,  title  by,  144  n. 

pleading  in  case  of,  234. 

trespass,  allegation  of,  303. 

reference  to,  in  pleading,  347. 
STATUTORY  DAMAGES,  594. 
STOCK, 

damages  in  actions  relating  to,  673. 
SUCCESSIVE  REPLEVINS, 

occupation,  14. 

title  by,  182. 
SUPERFLUOUS   AVERMENTS   IN   PLEADING,  245. 
SURVIVORSHIP, 

in  case  of  replevin,  63. 


TAKING  OF  PERSONAL  PROPERTY, 

damages  for,  588.     (See  Damages.) 

on  execution  against  a  stranger,  damages  for,  643. 
TAX  TITLE   IN  EJECTMENT,  157,  n. 
TENANTS  IN  COMMON, 

ejectment  in  case  of,  193. 
TENNESSEE, 

replevin  in,  137. 

ejectment  in,  220  n.,  223  n. 
TEXAS, 

ejectment  in,  192  n. 

pleading  in,  307,  319. 
TBIE, 

allegation  of,  in  pleading  —  variance,  246,  and  n. 
trespass,  303. 
trover,  336. 

false  imprisonment,  342. 
action  for  slander,  &c.,  353. 

of  declarations,  as  affecting  tlieir  admission  in  evidence,  441,  443. 

as  affecting  evidence  of  res  infer  alios,  483. 
damages,  570.     (See  Damages.) 
TITLE, 

necessary  to  replevin,  44. 

statement  of,  in  replevin,  77. 

necessary  to  ejectment,  144,  187.     (See  Ejectment.) 

of  a  stranger,  a  defence  in  ejectment,  146. 

possession,  as  evidence  of,  ISO. 

pleading  of,  in  trespass,  307,  308,  311,  312. 

49 


T70  INDEX. 

TITLE  —  continued. 

declarations  as  to,  whether  eviflence,  448. 
deeds,  damai^es  for  wrongs  relating  to,  675. 
TORT  AND  CONTRACT, 
joinder  of,  282,  285. 

distinction  between,  in  reference  to  joinder,  269. 
crime,  pleading  in  reference  to,  282  n. 
contract,  pleading  in  reference  to,  282. 
distinction  as  to  measure  of  damages,  545. 
crime,  in  reference  to  exemplary  damages,  602. 
TORTIOUS  TAKING, 

whether  necessary  to  replevin,  3. 
TOWN, 

road,  defective,  damages  in  case  of,  636. 

pleading  as  to,  384. 
taking  of  land  by,  evidence  of  opinion,  414. 
action  against,  for  defective  road,  evidence  of  opinion,  417. 
TRADE-MARK, 

damages  in  case  of,  631. 
TRANSITORY  ACTION, 

trover  is,  336. 
TREBLE  DAMAGES,  700. 
TRESPASS 

and  replevin  compared,  4. 

ah  initio,  in  case  of  distress,  16. 

pleading  in,  301. 

to  try  title,  307. 

and  case,  joinder  of,  316,  318. 

compared,  317,  325,  326. 
TROVER 

and  replevin  compared,  6. 

pleading  in,  335. 

and  case,  joinder  of,  335. 

nd  case  distinguished,  335. 
damages  in,  590. 
TRUST, 

parties  to  suit,  in  case  of,  272. 
TRUTH, 

in  pleading,  250. 

defence  of,  in  slander,  &c.,  355,  519. 

eflPect  on  damages,  623. 

u. 

UNITED  STATES  COURT, 

replevin  in  connection  with,  56  n. 


INDEX.  V71 


V. 

VALUE, 

evidt'nce  of  opinion  as  to,  423.     (See  Evidence.) 

bow  far  the  measure  of  dam.ages,  547,  5G0,  570,  584,  610. 
(See  Damages.) 
VARIANCE, 

in  i-)k'a{lintj,  242,  496.     (See  Pleading,  Evidenxe.) 
case  of  fraud,  294. 

slander,  &c.,  513. 
VERD  CT, 

in  replevin,  95,  106. 
VERMONT, 

replevin  in,  124. 

ejectment  in,  191  n.,  208  u. 
Vr  ET  JJLMIS, 

trespass  and  case,  325. 
VIRGINIA. 

replevin  in,  22  n.,  25  n.,  85. 

e  ectment  in,  202  n. 
VOTE, 

title  to  land  by,  in  ejectment,  157  n. 

w. 

WASTE, 

in  ejectment,  229. 
WATERCOURSE, 

pleading  in  reference  to,  363. 

evidence  in  reference    o,  526. 

damages  in  reference  to,  62 
WAY, 

evidence  as  to,  526. 
WEBSTER,  D., 

on  jdeading,  232  n. 
WILD  LANDS, 

adverse  possession  of,  175. 
WISCONSIN, 

replevin  in,  14  n. 

ejectment  in,  151,  203,  208  n.,  228  n. 
WRIT, 

in  action  of  replevin,  74. 

of  right,  143  n.     (See  Ejectment.) 
WRONG, 

must  be  affirmatively  proved,  393,  403,  405. 


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